MASTER
AGREEMENT
1.1.
The parties to this
Master Agreement (this “Agreement”) made as of June 9,
2017 (“Effective
Date”) are:
1.1.1.
Viacom Media
Networks, a division of Viacom International Inc., a Delaware
corporation located at 1515 Broadway, New York, NY 10036
(“VMN”);
and
1.1.2.
Super League
Gaming, Inc., a Delaware corporation located at 2906 Colorado Ave.,
Santa Monica, CA 90404 (“SLG”).
1.2.
SLG and VMN shall
each be a “Party” and collectively shall be
the “Parties” to
this Agreement.
2.1.
VMN owns and
operates a basic cable children’s programming service known
as Nickelodeon.
2.2.
SLG operates
recreational leagues for gamers of all ages to compete, socialize
and play video games in public spaces worldwide.
2.3.
Concurrently
herewith, VMN is purchasing 277,778 shares of the common stock,
$0.001 par value per share (“Common Stock”), of SLG, pursuant
to a Common Stock Purchase Agreement, dated as of the date hereof,
by and among SLG, VMN and the other parties thereto in connection
with a financing of Common Stock (the “Purchase Agreement”).
2.4.
As a condition and
inducement to VMN entering into the Purchase Agreement, VMN and SLG
desire to enter into this Agreement and agree to certain matters as
set forth herein.
[*****]
4.1.
Common Stock Grant. As
consideration for [*****], SLG hereby issues to VMN 277,778 shares
of Common Stock (the “VMN Shares”).
4.2.
Shareholder Rights. SLG and VMN
hereby agree that the VMN Shares are deemed to be
“Shares” for all purposes under the Purchase Agreement,
and the respective rights and obligations of SLG and VMN with
respect to the Shares thereunder shall apply to
*****
|
SUPER LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS
OF THIS DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED
CONFIDENTIAL TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY
FILED THE OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION.
|
the VMN Shares as if the VMN
Shares were purchased by, and issued to, VMN pursuant to the terms
and conditions thereof. For the avoidance of doubt, the VMN Shares
are also deemed to be “Registrable Securities” for all
purposes under the Investors’ Rights Agreement, dated as of
the date hereof, to be entered into by SLG, VMN and the other
parties thereto in connection with the Purchase Agreement (the
“IRA” and
together with the Purchase Agreement, the “Financing Documents”), and the
respective rights and obligations of SLG and VMN with respect to
Registrable Securities thereunder shall apply to the VMN
Shares.
4.3.1.
For so long as VMN
and/or any of its Affiliates beneficially own any shares of Common
Stock, SLG shall invite a representative of VMN to attend all
meetings of the Board of Directors of SLG (the “Board”) in a non-voting observer
capacity and, in this respect, shall give such representative
copies of all notices, minutes, consents and other materials that
it provides to its directors at the same time and in the same
manner as provided to such directors; provided, that such
representative shall agree to hold in strict confidence and trust
all information so provided; and provided, further, that SLG reserves the
right to withhold any information and to exclude such
representative from any meeting or portion thereof if SLG
reasonably determines in good faith, upon advice of counsel, that
access to such information or attendance at such meeting could
adversely affect the attorney-client privilege between SLG and its
counsel or result in disclosure of trade secrets or a conflict of
interest.
4.3.2.
For purposes of
this Agreement, “Affiliate” means, with respect to
either Party, any other individual or entity that directly, or
through one or more intermediaries, controls or is controlled by or
is under common control with such Party; provided, however, that, for all purposes
hereunder, the Affiliates of VMN shall consist solely of Viacom
Inc. and each other individual or entity that Viacom Inc.,
directly, or through one or more intermediaries, controls. For
purposes of this definition, the term “control” (including the terms
“controlled by”
and “under common control
with”) means the possession, directly or indirectly,
of the power to direct or cause the direction of management and
policies, whether through ownership of voting securities, by
contract or otherwise.
4.4.
Nothing in this
Agreement shall preclude or in any way restrict VMN or any of its
Affiliates from investing or participating in any particular
enterprise whether or not such enterprise has products or services
that compete with those of SLG.
The
Parties shall execute and deliver the Master Joint Promotion
Agreement, in the form
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
attached hereto as
Appendix B, concurrently
with the execution and delivery of this Agreement.
[*****]
Unless
otherwise set forth in this Agreement, each Party shall bear its
own costs and expenses that are incurred in the performance of its
obligations under this Agreement.
10.1.
Confidential Information. Each
Party acknowledges that by reason of its relationship to the other
Party under this Agreement it shall have access to and acquire
knowledge, material, data, systems and other information concerning
the operation, business and financial affairs of the other Party
that may not be accessible or known to the general public,
including the terms of this Agreement (referred to as
“Confidential
Information”).
10.2.1.
Each Party (the
“Receiving
Party”) agrees that it shall (a) maintain and preserve
the confidentiality of all Confidential Information received from
the other Party (the “Disclosing Party”), both orally
and in writing; (b) disclose Confidential Information only to
the directors, officers, employees and representatives, including
auditors, legal advisors, financial advisors and consultants, of
the Receiving Party and its subsidiaries (and, with respect to VMN,
the directors, officers, employees and representatives of Viacom
Inc. and its subsidiaries) (collectively, “Representatives”), on a
“need-to-know” basis, and advise its Representatives
that Confidential Information is confidential and that by receiving
Confidential Information they are agreeing to be bound by the
confidentiality provisions contained herein and use the
Confidential Information only for the purposes described herein;
and (c) not disclose Confidential Information to any third party
without the prior written consent of the Disclosing
Party.
10.2.2.
Each Receiving
Party further agrees to use the Confidential Information of the
Disclosing Party only for the purpose of performing its obligations
under this Agreement and the Financing Documents. The Receiving
Party’s
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
obligation of
confidentiality shall survive this Agreement for a period of two
(2) years from the date of its termination or expiration and
thereafter shall terminate and be of no further force or
effect.
10.2.3.
Exclusions. The confidentiality
obligations of the Parties described above shall not apply to
Confidential Information which (a) has become a matter of public
knowledge through no fault, action or omission of or by the
Receiving Party; (b) was in the Receiving Party’s possession
prior to disclosure by the Disclosing Party; (c) subsequent to
disclosure by the Disclosing Party, was obtained by the Receiving
Party from a third party who, to the knowledge of the Receiving
Party, was entitled to disclose the Confidential Information to the
Receiving Party; (d) was independently developed by the Receiving
Party without reference to or use of the Disclosing Party’s
Confidential Information; or (e) must be disclosed by the Receiving
Party pursuant to law, judicial order or any applicable regulation
(including any applicable stock exchange rules and regulations);
provided,
however, that in
the case of disclosures made in accordance with the foregoing
clause (e), the Receiving Party must provide prior written notice
to the Disclosing Party (if permitted by law) of any such legally
required disclosure of the Disclosing Party’s Confidential
Information as soon as practicable in order to afford the
Disclosing Party an opportunity to seek, at its expense, a
protective order, or, in the event that such order cannot be
obtained, disclosure may be made in a manner intended to minimize
or eliminate any potential liability.
11.1.
Governing Law. This Agreement
shall be governed by and construed in accordance with the laws of
the State of Delaware.
11.2.
Dispute Resolution. The Parties
(a) hereby irrevocably and unconditionally submit to the
jurisdiction of the federal and state courts located in Los Angeles
County, California for the purpose of any suit, action or other
proceeding arising out of or based upon this Agreement, (b) agree
not to commence any suit, action or other proceeding arising out of
or based upon this Agreement except in the federal and state courts
located in Los Angeles County, California, and (c) hereby waive,
and agree not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, any claim that
it is not subject personally to the jurisdiction of the above-named
courts, that its property is exempt or immune from attachment or
execution, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Agreement or the subject matter
hereof may not be enforced in or by such court.
EACH
PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
AGREEMENT, THE
FINANCING DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR
THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE),
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE
PARTIES HERETO AND THESE PROVISIONS SHALL NOT BE SUBJECT TO ANY
EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND
REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL
11.3.
Assignment. Neither Party may
assign this Agreement, in whole or in part, by operation of law or
otherwise, without the other Party’s prior written consent;
provided,
however, that VMN
may assign this Agreement to any of its Affiliates without
obtaining SLG’s prior written consent.
11.4.
Notices. All notices and other
communications hereunder shall be in writing and given by
nationally recognized overnight delivery service, such as Federal
Express, or delivery against receipt to the Party to whom it is
given, in each case, at such Party’s address set forth below
or such other address as such Party may hereafter specify by notice
to the other Party given in accordance herewith, together with a
copy thereof by email transmitted to the recipient’s email
address below (or such other email address as such Party may
hereafter specify by notice to the other Party given in accordance
herewith) which copy shall not constitute notice hereunder;
provided, that the
failure to deliver a copy of a notice or other communication to a
recipient via email shall in no way affect or limit the validity of
such notice or other communication. Any such notice or other
communication shall be deemed to have been given as of the date so
delivered (or, if so delivered after normal business hours at the
location of the recipient, on the next business day).
If to
SLG:
Super
League Gaming, Inc.
2906
Colorado Ave.
Santa
Monica, CA 90404
Attn:
General Counsel
Email:
gregg@superleague.com
If to
VMN:
Viacom
International Inc.
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
1515
Broadway
New
York, NY 10036
Attn: General
Counsel
[*****]
11.5.
Severability. If any provision
of this Agreement is or becomes or is deemed invalid, illegal or
unenforceable in any jurisdiction, such provision shall be deemed
amended to conform to the applicable laws of such jurisdiction so
as to be valid and enforceable, or, if it cannot be so amended
without materially altering the intention of the Parties, it shall
be stricken, but the validity, legality and enforceability of such
provision shall not in any way be affected or impaired thereby in
any other jurisdiction and the remainder of this Agreement shall
remain in full force and effect.
11.6.
Waiver. Waiver by either of the
Parties of any breach of any provision of this Agreement shall not
operate or be construed as a waiver of any prior or subsequent
breach of the same or any other provision hereof.
11.7.
Entire Agreement. This
Agreement (including all exhibits attached hereto, which are
incorporated herein by reference) and the Financing Documents
constitute the entire agreement between the Parties with respect to
the subject matter hereof and any other written or oral agreement
relating to the subject matter hereof existing between the Parties
is expressly canceled. This Agreement may not be changed, modified,
amended or supplemented, except in writing signed by both
Parties.
11.8.
Interpretation. The headings
contained herein are for convenience and reference only, do not
form a substantive part of this Agreement and in no way modify,
interpret or construe the intentions of the Parties. No provision
of this Agreement shall be interpreted for or against any Party
because that Party or its legal representative drafted such
provision. The words “including” and/or
“include” shall be interpreted without limitation when
used in this Agreement. If this Agreement is translated into any
language other than English, the English language version of this
Agreement shall prevail. A reference to a statute or statutory
provision herein is a reference to such statute or statutory
provision as amended, extended or re-enacted from time to
time.
11.9.
Counterparts. This Agreement
may be executed in multiple counterparts, each of which shall be
deemed to be an original, and all such counterparts shall
constitute one instrument, and signatures transmitted by facsimile
or electronic scan shall be effective.
[Signature Pages Follow]
*****
|
SUPER LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS
OF THIS DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED
CONFIDENTIAL TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY
FILED THE OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION.
|
IN WITNESS WHEREOF, this Agreement has
been duly executed and is effective as of the Effective
Date.
SLG:
SUPER LEAGUE GAMING, INC.
By:
/s/ Ann
Hand
Title:
CEO
Name:
Ann Hand
*****
|
SUPER LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS
OF THIS DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED
CONFIDENTIAL TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY
FILED THE OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION.
|
VMN:
VIACOM
MEDIA NETWORKS, a division of VIACOM INTERNATIONAL
INC.
By: /s/ Alexander J.
Berkett
Title:
Senior Vice President, Corporate
Development
Name:
Alexander J. Berkett
*****
|
SUPER LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS
OF THIS DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED
CONFIDENTIAL TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY
FILED THE OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION.
|
Appendix A
[*****]
*****
|
SUPER LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS
OF THIS DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED
CONFIDENTIAL TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY
FILED THE OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION.
|
Appendix B
Form of Master Joint Promotion Agreement
[attached]
*****
|
SUPER LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS
OF THIS DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED
CONFIDENTIAL TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY
FILED THE OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION.
|
MASTER JOINT PROMOTION AGREEMENT
This
Joint Promotion agreement (the “Agreement”), effective as of June
9, 2017 (the “Effective
Date”), by and between Super League Gaming, Inc.
(“Partner”), a
Delaware corporation, having its principal place of business at
2906 Colorado Ave., Santa Monica, CA 90404 and Viacom Media
Networks, a division of Viacom International Inc.
(“VMN”), a
Delaware corporation, having its principal place of business at
1515 Broadway, New York, NY 10036.
WHEREAS, Partner
operates recreational leagues for gamers of all ages to compete,
socialize and play video games in public spaces worldwide
(“Partner
Services”) and VMN owns and operates a basic cable
children’s programming service known as Nickelodeon
(“Nickelodeon”);
and
WHEREAS, Partner
desires to enter into a master joint promotion agreement with VMN
whereby VMN’s Nickelodeon Group business shall be the Anchor
Sponsor (as defined below) of all of Partner’s child directed
products and services that are available for sponsorship (the
“Promotion(s)”),
including without limitation all live and online recreational
league competitions conducted by Partner for kids under the age of
16 (the “Events”).
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
b. Statements
of Work. Upon mutual execution by the parties, each
Statement of Work shall be effective, incorporated into this
Agreement and subject to all the terms and conditions hereof. Each
Statement of Work shall be dated and consecutively numbered for
identification, and at a minimum, contain the following: (a) a
description of any Services to be performed and any Deliverables to
be provided; (b) the specifications for any Services and/or
Deliverables (“Specifications”); (c) milestone
schedules for performance and delivery of any Services and/or
Deliverables; (d) Fees payable by either party with respect to the
Services and/or Deliverables; (e) the term of the Statement of Work
and (f) any additional information, terms and conditions that may
be agreed between the parties, including, without limitation, any
terms necessary to perform the Services, provide the Deliverables
and/or evaluate Partner’s compliance with the terms of any
Statement of Work. In the event of a dispute between the terms of
this Agreement and any Statement of Work, the terms of this
Agreement shall prevail, except to the extent that such provision
in a Statement of Work makes express reference to the specific
provision of the Agreement to which it supersedes. Any
modifications to a Statement of Work shall be set forth in a
written amendment, duly executed by the parties, setting forth such
modifications and any impact such modifications may have on
performance of Services, provision of Deliverables, Fees payable
thereunder and/or any other terms and conditions of the Statement
of Work.
*****
|
SUPER LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS
OF THIS DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED
CONFIDENTIAL TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY
FILED THE OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION.
|
c.
Territory and Promotion
Elements. Unless otherwise specified in a Statement of Work,
each Promotion shall be conducted within the United States, its
territories and possessions, including Puerto Rico (the
“Licensed
Territory”) during the Term (as defined below), and
shall consist of the elements specified in each such Statement of
Work. As Anchor Sponsor for any given Event, VMN shall be
responsible for the cost of any giveaways, prizing and marketing
materials that it chooses to provide at its sole
discretion.
a.
VMN hereby grants
Partner the non-exclusive, royalty-free, non-transferable, limited,
revocable right to use the Nickelodeon name and logos
(collectively, the “VMN
Marks”) during the Term in the Licensed Territory
solely in connection with the Promotions on the terms and
conditions set forth herein, including without limitation,
VMN’s approval rights set forth in Section 7(a) below and the
marks usage guidelines as set forth in Exhibit B.
b.
Partner hereby
grants VMN the non-exclusive, royalty-free, non-transferable,
limited, revocable right to use Partner’s name and logo and
the names and images of the Partner Services, including without
limitation, any third party names, logos and trademarks associated
therewith, which must be provided to VMN free and clear for use as
contemplated herein (which third party content shall include the
Minecraft name, logo and trademarks associated with the Partner
Services) (collectively, the “Partner Marks”) during the Term in
the Licensed Territory solely in connection with the Promotions, on
the terms and conditions set forth herein, including, without
limitation, Partner’s approval rights set forth in
Section 7(b) below
and the marks usage guidelines as set forth in Exhibit B.
c.
The VMN Marks
together with the Partner Marks may collectively be referenced
herein as the “Marks.”
d.
Each party may
exercise the rights granted above directly or through its
affiliates, contractors or agents, subject to the terms and
conditions of this Agreement.
e.
Neither party may
register an internet domain name that includes a Mark of the other
party or the other party’s affiliates without the prior
written consent of such other party.
f.
Notwithstanding the
foregoing, neither party may manufacture, produce or distribute a
tangible product, item or article of consumption that is branded or
co-branded with a Mark of the other party (collectively, the
“Promotional
Products”) except with the express written approval of
the other party and subject to the review and approval rights as
set forth herein.
g.
Each party
recognizes the great value of the publicity and goodwill associated
with the Marks of the other, and acknowledges that such goodwill is
exclusively that of the other party and inures solely to the
benefit of the other party.
a.
Term. [*****] Any obligations
hereunder which remain following such period shall survive the
expiration of this Agreement. The parties' representations,
warranties and indemnification obligations shall survive the
termination of this Agreement. Notwithstanding
the
*****
|
SUPER LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS
OF THIS DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED
CONFIDENTIAL TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY
FILED THE OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION.
|
expiration or
termination of this Agreement or any provision hereof to the
contrary, unless otherwise requested by VMN in writing, the terms
and conditions of this Agreement shall continue in full force and
effect with respect to each Statement of Work that has not been
completed, terminated or expired, until such time that all of the
Services to be performed and the parties’ obligations related
thereto as set forth in the Statement of Work involved have been
fully completed, delivered or performed in accordance with the
applicable terms and conditions contained therein and/or such
Statement of Work has been terminated.
b.
Termination for Material
Breach. Either party shall have the right to terminate this
Agreement or any Statement of Work, in whole or in part, if the
other party is in material breach of this Agreement or Statement of
Work, as applicable, and fails to cure such material breach within
30 days following written notice of such material
breach.
c. Termination
for Convenience, Change of Control or Purported Assignment.
VMN shall have the right to terminate this Agreement and/or any
Statement of Work, in whole or in part, hereunder: (a) for any
reason without further obligation or liability of any kind and (b)
immediately upon notice to Partner in the event Partner undergoes
or effectuates (i) a change in control where control is (y)
acquired, directly or indirectly, in a single transaction or series
of related transactions, or all or substantially all of
Partner’s assets are acquired, by any entity, or Partner is
merged with or into another entity to form a new entity and (z) the
successor in interest that results from the change of control (A)
[*****], (B) is not, in VMN’s reasonable judgment, as
creditworthy as Partner or (C) does not have capitalization and/or
funding sources at least as equal to or greater than that of
Partner immediately prior to the effective date of any such change
of control or (ii) a purported assignment by Partner of
Partner’s rights and obligations under this Agreement in
breach of Section
17(e).
d. Termination
for Insolvency. Either party shall have the right to
terminate this Agreement and/or any Statement of Work immediately
upon written notice in the event the other party: (i) admits in
writing its inability to pay its debts as they become due, fails to
satisfy any judgment against it, or otherwise ceases operations of
its business in the ordinary course, (ii) is adjudicated bankrupt
or becomes insolvent, (iii) winds up or liquidates its business
voluntarily or otherwise, (iv) applies for, consents to or suffers
the appointment of, or the taking of possession of by, a receiver,
custodian, assignee, trustee, liquidator or similar fiduciary of
itself or of all or any substantial portion of its assets, (v)
makes a general assignment for the benefit of creditors, (vi)
commences a voluntary case under any state or federal bankruptcy
laws (as now or hereafter in effect), (vii) files a petition
seeking to take advantage of any other law providing for the relief
of debtors, (viii) acquiesces to, or fails to have dismissed,
within 30 days, any petition filed against it in any involuntary
case pursuant to such bankruptcy laws, and/or (ix) takes any action
for the purpose of effecting any of the foregoing.
e. Effect
of Termination. Upon expiration or termination of this
Agreement or any Statement of Work for any reason or at any earlier
time upon VMN’s request: (a) Partner shall return to VMN (or
destroy at VMN’s request) all copies of VMN’s
Confidential Information in Partner’s possession or control,
and (b) except as otherwise set forth herein, the rights and
obligations of both parties shall cease and any licenses granted by
either party to the other herein shall terminate and be of no
further force or effect.
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
[*****]
5.
Partner’s Responsibilities
Partner
shall be responsible for the following in connection with the
Promotions at Partner’s sole cost and expense:
a.
Supplying VMN with
all Promotion-related creative, Promotional Products and any other
materials in connection with the Promotions which shall bear the
VMN Marks in order to allow VMN to exercise its approval rights as
set forth herein;
b.
Provide VMN with
input and feedback regarding VMN’s usage of the Partner Marks
in accordance with the terms set forth herein;
c.
Providing VMN with
any Promotion elements which incorporate the VMN Marks in order to
allow VMN to exercise its approval rights as set forth
herein.
6.
VMN's Responsibilities
VMN
shall be responsible for the following in connection with the
Promotions at VMN’s sole cost and expense:
a.
Supplying Partner
with all Promotion-related creative and any other materials in
connection with the Promotions which shall bear the Partner Marks
in order to allow Partner to exercise its approval rights as set
forth herein;
b.
Provide Partner
with input and feedback regarding Partner’s usage of the VMN
Marks in accordance with the terms set forth herein;
a.
The manner in which
the VMN Marks may appear, if at all, on the Promotional Products
and any and all promotional, advertising, marketing, publicity and
display materials or content created by Partner (or by a third
party on behalf of Partner) to be used in connection with the
Promotions (each a “Partner
Use”, collectively the “Partner Uses”) shall be subject to
VMN's prior written approval in each case and for each proposed
use. Prior to the manufacture or production of any of the
foregoing, Partner shall provide VMN with not fewer than three (3)
samples of each such proposed Partner Use. Within five (5) business
days after its receipt of the foregoing, VMN (or its designee)
shall advise Partner, in writing, of its approval or disapproval,
along with corrective comments, of such proposed Partner Use and no
item shall be deemed approved by VMN unless such approval is given
in writing by VMN. Failure to approve within the timeframe set
forth above shall be deemed disapproval. If any such proposed
Partner Use is disapproved by VMN, Partner shall correct and
resubmit such material or item for VMN’s subsequent review
and approval. Once a sample has been approved pursuant to this
paragraph, Partner shall not depart therefrom in any material
respect without the prior written approval of VMN. In addition,
approval by VMN and/or by any other parties designated by VMN shall
not
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
relieve Partner of
any of its obligations or warranties hereunder.
b.
The manner in which
the Partner Marks may appear, if at all, on the Promotional
Products and any and all promotional, advertising, marketing,
publicity and display materials or content created by VMN (or a
third party on behalf of VMN) to be used in connection with the
Promotions (each a “VMN
Use”, collectively the “VMN Uses”) shall be subject to
Partner’s prior written approval in each case and for each
proposed use. Prior to the manufacture or production of any of the
foregoing, VMN shall provide Partner with not fewer than three (3)
samples of each such proposed VMN Use. Within five (5) business
days after its receipt of the foregoing, Partner (or its designee)
shall advise VMN, in writing, of its approval or disapproval, along
with corrective comments, of such proposed VMN Use and no item
shall be deemed approved by Partner unless such approval is given
in writing by Partner. Failure to approve within the timeframe set
forth above shall be deemed a disapproval. If any such proposed VMN
Use is disapproved by Partner, VMN shall correct and resubmit such
material or item for Partner’s subsequent review and
approval. Once a sample has been approved pursuant to this
paragraph, VMN shall not depart therefrom in any material respect
without the prior written approval of Partner. In addition,
approval by Partner and/or by any other parties designated by
Partner shall not relieve VMN of any of its obligations or
warranties hereunder.
8.
Intellectual Property Notices
a.
Partner shall
display or print the copyright notices set forth in Exhibit C attached hereto and
made a part hereof, on any and all advertisement, publicity and
promotional releases concerning the Promotions, as well as any
Promotional Product or other material produced in connection with
the Promotions. No advertisement, publicity or promotional release,
Promotional Product, or other material produced in connection with
the Promotions upon which such copyright notices are printed shall
contain any other copyright notice relating to the VMN Marks unless
VMN has given Partner prior written consent thereto.
b.
Partner shall
display or print in a legible manner the trademark and service mark
notices set forth in Exhibit C in proximity to the
VMN Marks wherever used, including without limitation, on
advertisement, publicity and promotional releases concerning the
Promotions.
c.
VMN shall display
or print in a legible manner the trademark and service mark notices
set forth in Exhibit
C in proximity to the Partner Marks wherever used,
including, without limitation, on advertisements, publicity, and
promotional releases concerning the Promotions.
a.
Partner
acknowledges and agrees that: (i) all copyrights, trademarks,
service marks and other intellectual property rights relating to
the VMN Marks (including with respect to uses approved under
Section 7 and
referred to in Section
8 above) in the name of and/or owned by VMN shall be and
remain the sole and exclusive property of VMN; (ii) Partner shall
not at any time acquire or claim any right, title or interest of
any nature whatsoever in any such copyright, trademark, service
mark or other intellectual property right relating to the VMN Marks
by virtue of this Agreement, any Statement of Work, or
Partner’s use thereof in connection with the Promotions, and
shall not seek to obtain any registration therefor anywhere; and
(iii) any right, title or interest in or relating to any copyright,
trademark, service mark or other intellectual
property
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
right relating to
the VMN Marks which comes into existence during the Term hereof as
a result of the exercise by Partner of any right granted to it
hereunder shall immediately and automatically vest in VMN, and for
that purpose Partner hereby irrevocably assigns and transfers any
such right, title and interest to VMN without reservation of
rights. To the fullest extent permitted by law, Partner agrees
never to contest or assist others to contest the validity or
enforceability of any VMN Marks and third party copyrights,
trademarks and service marks relating to the VMN
Marks.
Partner
further acknowledges and agrees that: (i) all Materials (as defined
in this subsection) including, without limitation, art work,
animations, graphics, designs, ideas, plans, creative concepts and
elements conceived, prepared, created or furnished or caused to be
conceived, prepared, created or furnished in connection with the
Promotions, excluding Partner’s Marks, that come into
existence during the Term (all of the foregoing collectively, the
“Materials”, and
one of them the “Material”), shall be owned solely,
exclusively and in perpetuity by VMN from the moment such Materials
come into existence and that VMN therefore owns all of the rights,
title and interest comprised in the copyright and other
intellectual property rights in and to the Materials; (ii) Partner
shall not at any time acquire or claim any right, title or interest
of any nature whatsoever in the Materials by virtue of this
Agreement, any Statement of Work, or Partner’s creation or
use thereof in connection with the Promotions; and (iii) Partner
shall not seek any copyright, trademark or other intellectual
property right registration for the Materials. Partner, for itself,
its affiliates and any third party participating in the creation or
development of Materials, hereby irrevocably assigns and transfers
to VMN all right, title and interest in and to the Materials,
without reservation of rights. To the fullest extent permitted by
law, Partner agrees never to contest or assist others to contest
VMN’s rights or interests in the Materials.
b.
VMN acknowledges
and agrees that: (i) all copyrights, trademarks, service marks and
other intellectual property rights relating to the Partner Marks
(including with respect to uses approved under Section 7 and referred to in
Section 8 above) in
the name of and/or owned by Partner shall be and remain the sole
and exclusive property of Partner; (ii) VMN shall not at any time
acquire or claim any right, title or interest of any nature
whatsoever in any such copyright, trademark, service mark or other
intellectual property right relating to the Partner Marks by virtue
of this Agreement, any Statement of Work, or of VMN’s use
thereof in connection with the Promotions, and shall not seek to
obtain any registration therefor anywhere; and (iii) any right,
title or interest in or relating to any copyright, trademark,
service mark or other intellectual property right relating to the
Partner Marks which comes into existence during the Term hereof as
a result of the exercise by VMN of any right granted to it
hereunder shall immediately and automatically vest in Partner, and
for that purpose VMN hereby irrevocably assigns and transfers any
such right, title and interest to Partner without reservation of
rights. To the fullest extent permitted by law, VMN agrees never to
contest or assist others to contest the validity or enforceability
of any Partner Marks and third party copyrights, trademarks and
service marks relating to the Partner Marks.
10.
Representations and Warranties
a.
Each party hereto
represents and warrants to the other party as follows: (i) it is
authorized to enter into this Agreement; (ii) the execution and
performance of this Agreement will not conflict with or result in a
material breach of the terms of any other agreement to which it is
a party; (iii) all obligations undertaken by it hereunder and all
materials provided, produced or supplied by it or on its behalf in
connection with the Promotions will comply with all federal,
state
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
and local laws and
regulations including, without limitation, the FTC Endorsement and
Testimonial Guidelines, the FTC .com Disclosure Guidelines and
COPPA (as defined in Section 11(a)below) and any
applicable laws of other countries, and will not violate or
infringe upon the rights of any person, estate and/or entity; and
(iv) each of its products (including Promotional Products),
services (including Partner Services), redemptions and/or
fulfillments relating to the Promotions, this Agreement, and/or any
Statement of Work, if any, shall comply in all respects with this
Agreement, such Statement of Work, and all applicable federal,
state and local laws and regulations and any applicable laws of
other countries.
b.
VMN further
represents and warrants that it owns the VMN Marks and has sole,
exclusive and full power to license and grant to Partner the rights
and interests provided herein.
c.
Partner further
represents and warrants that: (i) it owns or otherwise has the
rights to exploit the Partner Marks as contemplated herein and has
sole, exclusive and full power to license and grant to VMN the
rights and interests provided herein; and (ii) in the event that
Partner employs, invites or otherwise engages any individual(s) to
attend and/or participate in any Promotion-related event or
activity including, without limitation, production shoots or
on-ground activations, Partner will have conducted a criminal
record check (covering the seven [7] year period prior to hire or
the date such background check is conducted, as applicable) on such
individual(s) and confirm that such report did not state that such
individual(s) had been convicted of a criminal offense involving a
minor or required to report or register pursuant to Cal. Penal
Code §§290-294, N.Y. Correction Law §168, or
any similar statute, for a crime related to a sexual offense
against a minor.
a. The parties
acknowledge that the Promotions may entail Partner advertising on,
or referring potential users to, VMN’s Nickelodeon-branded
digital properties, websites, games and/or mobile applications
(each a “Nick
Property”, collectively, the “Nick Properties”). In such
situations, Partner may have provided to VMN certain software and
other intellectual property (including, without limitation, in-game
advertising, hyperlinks, plug-ins, software development kits,
application programming interfaces and the like) for use in
connection with the Nick Properties in support of the Promotions
(the “Embedded
IP”). As the functionality of the Embedded IP may
permit Partner and other third parties to collect personal
information (as defined the Children’s Online Privacy
Protection Act (and the rules promulgated by the Federal Trade
Commission thereunder) (“COPPA”)) (such information,
“User
Information”) from or about users of the Nick
Properties, Partner acknowledges and understands that: (i) the Nick
Properties may be targeted towards or accessed by children below
the age of thirteen (13) years old; (ii) the Embedded IP, as used
in connection with the Nick Properties, may be used to collect User
Information from or about children below the age of thirteen (13)
years old; and, (iii) the collection, storage, maintenance,
transmission, dissemination, disclosure and use of User Information
from or about children below the age of thirteen (13) years old are
subject to strict legal and regulatory protection and
scrutiny.
b. Partner represents,
warrants and covenants, as applicable, to or with VMN that: (i) the
collection, storage, maintenance, transmission, dissemination,
disclosure and use of User Information which is obtained from or
about users of any Nick Property and/or the attendees of any Events
(including, in particular, such User Information relating to
children under the age of
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
thirteen [13]) do
and will continue to comply strictly with all applicable laws,
rules and regulations and the highest industry standards,
including, without limitation, the CAN-SPAM Act of 2003, COPPA, the
standards and guideline of the Children’s Advertising Review
Unit of the National Advertising Division of the Better Business
Bureau (“CARU”),
and any other reasonable standards and guidelines communicated by
VMN to the Partner from time to time; (ii) Partner will provide all
legally required notices (with such notices being clearly and
understandably written, complete and containing no unrelated,
confusing, or contradictory matter) and obtain verifiable parental
consent (as defined in COPPA), to the extent required pursuant to
COPPA, prior to the collection, storage, maintenance, transmission,
dissemination, disclosure or use of User Information from or about
children under the age of thirteen (13) years old obtained during
or in connection with the Events, through the Embedded IP used in
connection with any Nick Property or otherwise collected by Partner
or third parties authorized by Partner from or about attendees of
the Events and/or users of any Nick Property; (iii) Partner will
only collect, store, maintain, transmit, disseminate, disclose
and/or use User Information as required for it to fulfill the
Partner’s obligations to VMN pursuant to its commercial
relationship with VMN or as permitted pursuant to its written
agreement with a handwritten signature by authorized
representatives of VMN and Partner; (iv) Partner has established
protocols for ensuring and will maintain, in accordance with all
applicable laws, rules and regulations and the highest industry
standards, the confidentiality, security, and integrity of all User
Information obtained at and in connection with all Events and via
the Embedded IP used in connection with any Nick
Property or otherwise
collected by Partner or third parties authorized by Partner from or
about users of any Nick Property; and, (v) without derogating from
the generality of the foregoing, Partner does not and will not
engage in any unfair or deceptive acts or practices in connection
with the collection, storage, maintenance, transmission,
dissemination, use and/or disclosure of User Information obtained
at or in connection with the Events, through the Embedded IP or
otherwise relating to attendees of the Events or users of any Nick
Property.
c. Partner will,
immediately upon VMN’s request: (i) suspend any and all
direct or indirect collection of User Information by the Embedded
IP used in connection with the Nick Properties or otherwise
relating to users of the Nick Properties; (ii) disable any
functionality of the Embedded IP that VMN identifies as being in
violation of any applicable law, rule, regulation or industry
standard, including, without limitation, the CAN-SPAM Act of 2003,
COPPA, the standards and guidelines of CARU, and/or any other
reasonable standards and guidelines communicated by VMN to Partner
from time to time; (iii) provide to VMN all User Information
collected via the Embedded IP used in connection with the Nick
Properties or otherwise collected by Partner or third parties
authorized by Partner from or about users of the Nick Properties;
(iv) delete or destroy all User Information collected via the
Embedded IP used in connection with the Nick Properties or
otherwise collected by Partner or third parties authorized by
Partner from or about users of the Nick Properties; and, (v)
otherwise cooperate with all reasonable requests by VMN relating to
the Embedded IP used in connection with the Nick Properties, the
User Information collected thereby and the User Information
relating to users of the Nick Properties otherwise collected by
Partner or third parties authorized by Partner.
a.
VMN shall at all
times defend, indemnify and hold Partner, its parent, subsidiaries,
affiliated entities, and the respective officers, directors,
agencies and employees of each of the foregoing harmless from and
against any and all liability, costs, loss or expense it or they
may incur or be subjected to by reason of any claim or suit arising
out of or relating to: (i) any breach
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
of its
representations, warranties and/or undertakings hereunder; (ii)
VMN's performance of its obligations as set forth in this Agreement
and/or any Statement of Work; (iii) any actual or alleged failure
by VMN to conform to or comply with the respective laws and
regulations applicable to its obligations herein; (iv) any other
agreement made by VMN to fulfill its obligations herein; (v) the
operation of any of its websites with respect to the Promotions; or
(vi) the use of the VMN Marks in accordance with this Agreement
and/or any Statement of Work, provided that Partner shall give
prompt written notice, cooperation and assistance to VMN with
respect to any such claim or suit, and provided further that VMN
shall have the option to undertake and conduct the defense of any
suit so brought against VMN. Partner’s review and approval of
any elements of the Promotions furnished by VMN shall not
constitute a waiver by Partner of VMN’s indemnity
hereunder.
b.
Partner shall at
all times defend, indemnify and hold VMN, its parent, subsidiaries,
affiliated entities, and the respective officers, directors,
agencies and employees of each of the foregoing harmless from and
against any and all liability, costs, loss or expense it or they
may incur or be subjected to by reason of any claim or suit arising
out of or relating to: (i) any breach of its representations,
warranties and/or undertakings hereunder; (ii) Partner’s
performance of its obligations as set forth in this Agreement
and/or any Statement of Work; (iii) any actual or alleged failure
by Partner to conform to or comply with the respective laws and
regulations applicable to its obligations herein; (iv) any other
agreement made by Partner to fulfill its obligations herein; (v)
any product liability claim relating to the design, manufacture and
distribution of the products manufactured and distributed by
Partner; (vi) any defective or dangerous materials produced,
manufactured or distributed by Partner that may in any way present
an unreasonable risk to users or consumers; (vii) any collection,
storage, maintenance, transmission, dissemination, disclosure or
use of User Information collected by Partner, but specifically
excluding any such claim or action to the extent based upon any
unauthorized act or omission of VMN, its employees, contractors,
representatives or agents; (viii) the negligence or willful
misconduct of any of Partner’s employees, agents and/or
invitees who attend or participate in any Promotion-related event
or activity; or (ix) the use of the Partner Marks in accordance
with this Agreement and/or any Statement of Work, provided that VMN
shall give prompt written notice, cooperation and assistance to
Partner with respect to any such claim or suit, and provided
further that Partner shall have the option to undertake and conduct
the defense of any suit brought against Partner. VMN’s review
and approval of any elements of the Promotions furnished by Partner
shall not constitute a waiver by VMN of Partner’s indemnity
hereunder.
c.
EXCEPT FOR EACH
PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN, ANY DAMAGES
RESULTING FROM ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY
OBLIGATIONS HEREIN, PARTNER’S BREACH OF SECTION 11, ANY
DAMAGES RESULTING FROM A PARTY’S FRAUD, WILLFUL ACTS, OR
INTENTIONAL MISCONDUCT, AND/OR ANY DAMAGES RESULTING FROM PERSONAL
INJURY OR PROPERTY DAMAGE (COLLECTIVELY, THE “CARVE-OUT CLAIMS”), IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (WHICH FOR
THE PURPOSES OF CLARITY DOES NOT INCLUDE AD REVENUES) IN ANY MANNER
IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF
THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT
FOR AMOUNTS PAYABLE DUE TO CARVE-OUT CLAIMS, EACH PARTY’S
AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT SHALL NOT EXCEED TWO MILLION DOLLARS.
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
a.
VMN agrees to carry
and maintain at its own expense in full force and effect at all
times during the Term comprehensive general liability insurance
with a limit of liability of not less than [*****] per occurrence
and [*****] in the aggregate. At Partner’s request, VMN shall
provide Partner with a certificate of insurance attesting to such
coverage.
b.
Partner agrees to
carry and maintain at its own expense in full force and effect at
all times during the Term comprehensive general liability insurance
with a limit of liability of not less than [*****] per occurrence
and [*****] in the aggregate. At VMN's request, Partner shall
provide VMN with a certificate of insurance attesting to such
coverage.
c. Partner shall
procure and maintain at its own expense in full force and effect
standard producer's liability (errors and omissions) insurance
issued by a nationally recognized insurance carrier acceptable to
VMN covering the Promotions with minimum limits of [*****] for any
claim arising out of a single occurrence and [*****] for all claims
in the aggregate. Such errors and omissions insurance:
(i)
shall be written on
either (x) an occurrence basis, remaining in full force and effect
for three (3) years from commencement of the Promotions
(“E&O
Term”), or (y) a claims-made basis, covering any
claims made at any time during the E & O Term;
(ii)
shall provide
coverage for the title (including supplying the insurance company
with the title search report);
(iii)
may not be canceled
without thirty (30) days’ prior written notice to
VMN;
(iv)
shall carry a
deductible in an amount subject to VMN’s prior written
approval;
(v)
shall contain the
customary coverage and shall not contain any unusual exclusions,
exceptions or endorsements; and
(vi)
shall name, as
additional insureds, Viacom Media Networks, Viacom and their
respective subsidiaries and related companies, its and their
licensees and affiliated entities, any officers, directors, agents
and employees of each of the foregoing.
c.
The insurance
coverage required pursuant to this paragraph shall include
contractual liability coverage which specifically insures the hold
harmless and indemnification provisions set forth in this
Agreement; will be secured and maintained under an occurrence form
policy; will be placed with an insurer of recognized responsibility
with an “A-“ rating or better by A.M. best Company or
Standard & Poor’s; will name the other party and its
parent, subsidiary and affiliated entities, its and their licensees
and the respective officers, directors, employees and agents of
each of the foregoing as additional insureds; and will provide for
at least thirty (30) days advance written notice to the other party
in the event of cancellation or modification thereof.
No
failure or omission by a party hereto in the performance of any
obligation of this Agreement shall be deemed a breach of this
Agreement nor shall it create any liability, to the extent the same
arises from any cause or causes beyond the reasonable control of
the party, including but not limited to the following, which, for
the purpose of this Agreement, shall be regarded as beyond the
control of the party in question: acts of God, acts or omissions of
any government, any rules, regulations, or orders issued by any
governmental authority or any officer,
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
department, agency,
or instrumentality thereof, fire, storm, flood, earthquake,
accident, war, rebellion, insurrection, riot, invasion, terrorism,
strikes and lockouts.
If any
party anticipates that any circumstances beyond its reasonable
control may occur or is affected by any such circumstances, then
that party shall promptly furnish written notice of such
circumstances to the other party, and shall take all reasonable
steps to carry out the terms of the Agreement as soon as reasonably
possible, subject to delays as may be caused by such an event. In
the event that these circumstances take place, and shall continue
for a period of fifteen (15) or more days, the other party shall
have the right to terminate that portion of the Agreement that has
not been performed and appropriate settlements and adjustments will
be made.
Any notices required to be given under the provisions of this
Agreement shall be in writing and shall be deemed to have been duly
served if hand delivered (including, without limitation, via
messenger or overnight delivery service) or sent by facsimile, or
within the United States and Canada by prepaid first-class
registered mail, or outside the United States and Canada by prepaid
registered airmail, correctly addressed to the relevant
party’s address as specified in this Agreement or at such
other address as either party may hereafter designate from time to
time in accordance with this paragraph, and any notice so given
shall be deemed to have been served:
(a)
If
hand delivered, at the time of delivery (subject in the case of
messenger or overnight delivery service to prove by the sender that
it holds a proof of receipt signed by addressee indicating
delivery).
(b)
If
sent by facsimile or other print-out communication mechanisms,
within eight (8) hours of transmission if during business hours at
its destination, or within the first eight (8) hours of the next
business day following the transmission if such transmission is not
within business hours but subject, in the case of facsimile and
other print-out communication mechanisms, to prove by the sender
that it holds a transmission report indicating uninterrupted
transmission to the addressee, and to dispatch of the notice by
prepaid mail as herein provided on the same day as such
transmission (or the next day if notice is transmitted outside post
office hours).
(c)
If
sent by prepaid mail as aforesaid, within three (3) business days
of mailing (exclusive of the hours of Sunday) if mailed to an
address within the country of mailing, or within seven (7) days of
mailing if mailed to an address outside the country of
mailing.
All notices hereunder shall be sent in the same manner
to:
i. To
Partner:
Super League
Gaming, Inc.
2906
Colorado Ave
Santa
Monica, CA 90404
Attn:
Anne Gailliot, Chief of Staff
415-378-0223
anneg@superleague.com
ii. To
VMN:
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
203
W Olive Ave., Floor 5
Burbank,
CA 91502
[*****]
a.
Except as may be
required by any applicable law, government order or regulation, or
by order or decree of any court of competent jurisdiction, no party
shall, without the prior written consent of the other party,
publicly divulge or announce, or in any manner disclose to any
unrelated third party, or use for any purpose not relating to this
Agreement, any information revealed to it by the other party or the
affiliates of the other party pursuant hereto, or any of the
specific terms and conditions of this Agreement, and each party
shall safeguard such information from unauthorized use or disclose
using at least the same level of efforts that it uses to protect
its own confidential information (provided such efforts are
reasonable and based on accepted industry practices). Each party
may disclose confidential information of the other party to
affiliates, contractors, advisors and agents for purposes relating
to this Agreement, and to auditors, provided such recipients are
bound to obligations or duties of confidentiality that apply to
such information.
b.
Notwithstanding the
foregoing, with regard to obligations of nondisclosure or
limitations as to use, each party shall have no liability with
respect to the disclosure and/or use of any information of the
other which such party can establish: (i) is or becomes publicly
known without breach of this Agreement; (ii) is known to such
party, without any obligation of confidentiality, prior to
disclosure of such information by the other party; (iii) was
received by such party from a third party source having the right
to disclose such information; or (iv) was independently developed
by such party without reference to the confidential information of
the other party.
17.
Additional Provisions
a.
Consumer Complaints
- VMN and Partner shall cooperate with each other in a reasonable
manner to appropriately resolve any consumer complaints that may
arise from the Promotions. Each party shall, when necessary or
appropriate or when reasonably requested by the other party,
undertake a factual investigation of consumer complaints arising
out of its products or services. Any consumer complaints that are
principally directed to any other party’s products or
services shall be immediately forwarded to such other party for
response. Each party shall be responsible for responding to
consumer complaints directed at its respective product or
service.
b.
Adverse Publicity -
If any product or service of a party to this Agreement which is
included in a Promotion shall be the subject of adverse publicity,
including but without limitation, contamination of the product,
criminal or otherwise, or market withdrawal or a recall, which in
the reasonable judgment of the other party is or may be detrimental
to the intended purpose of this joint promotion or to such other
party’s reputation or goodwill, then such other party may
elect to terminate those aspects of the Promotion which it is
reasonably feasible to terminate, and thereafter no party shall
have any further obligation to the other party with respect to
those aspects of the Promotion under this Agreement.
Notwithstanding the foregoing, it is agreed that the party causing
the termination shall remain financially liable for its share of
all costs committed to
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
pursuant to this
Agreement as of the date that said party’s participation is
wholly or partially eliminated.
c.
Waiver - No waiver
by any party, whether express or implied, of any provision of this
Agreement shall constitute a continuing waiver of such provision or
a waiver of any other provision of this Agreement. No waiver by any
party, whether express or implied, of any breach or default by the
other parties shall constitute a waiver of any other breach or
default of the same or any other provision of this
Agreement.
d.
Relationship of the
Parties - Nothing herein contained shall be so construed as to
constitute the parties as principal or agent, employer and
employee, partners, or joint venturers nor shall any similar
relationship be deemed to exist among the parties. No party shall
have any power to obligate or bind the other parties, except as
specifically provided herein.
e.
Assignability -
This Agreement may not be assigned by any party, by operation of
the law or otherwise, without the prior written consent of the
other parties; provided, however, any party may assign this
Agreement to any parent, subsidiary or affiliated company or to any
entity acquiring all or substantially all of the assets of such
party (including by merger) without the prior written consent of
the other parties.
f.
Construction/Headings
- The headings contained herein are for convenient reference only.
They shall not be used in any way to govern, limit, modify or
construe this Agreement and shall not be given any legal effect.
This Agreement shall be construed as if it were drafted jointly by
the parties. The word “including” shall be construed to
mean “including without limitation.”
g.
Governing Law -
This Agreement and all matters or issues collateral thereto shall
be governed by and construed in accordance with the laws of the
State of New York applicable to contracts executed and performed
entirely therein. Each of the parties hereby consents to the
exclusive jurisdiction of the courts of the State of New York in
the City and County of New York or the federal courts of the United
States for the Southern District of New York located in the City
and County of New York in connection with any lawsuit, action or
proceeding arising out of or related to this Agreement. Each party
hereby irrevocably and unconditionally: (i) waives any objection
which it might have now or hereafter to the jurisdiction and venue
of such courts in any such litigation, action or proceeding, (ii)
submits to the personal jurisdiction of any such court in any such
litigation, action or proceeding, and (iii) waives any claim or
defense of inconvenient forum with respect thereto. Partner hereby
consents to service of process by registered mail, return receipt
requested, at Partner’s address stated herein and expressly
waives the benefit of any contrary provision of foreign
law.
h.
Severability
– If any term of this Agreement is held to be invalid or
unenforceable, such holding will not affect the validity or
enforceability of any other term hereto.
i. Survival
- Notwithstanding termination or expiration of this Agreement, for
any reason whatsoever, the conditions and provisions of this
Agreement that are intended to continue to survive, shall continue
and survive, including, but not limited to, Sections 9, 10, 12, 15, 16, and
17.
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
j.
No Third Party
Beneficiaries – Except for express references to Affiliates,
no person other than the parties shall be considered a third party
beneficiary of this Agreement or otherwise entitled to any rights
or remedies under this Agreement.
k.
Entire Agreement -
This Agreement, including its attachments and exhibits, constitutes
the whole and complete agreement between the parties with respect
to the subject matters hereof and no prior oral or written
agreement with respect to the subject matter hereof (including any
letters of intent and similar documents) shall be deemed a part of
or a modification of this Agreement. This Agreement can only be
modified by a written agreement between the parties executed after
the effective date hereof.
l.
Counterparts
– This Agreement may be executed in counterparts (which may
be transmitted via facsimile, email or other electronic
transmission method), each of which shall be deemed an original,
and all of which shall constitute the same instrument.
[Signature Pages to Follow]
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
By
their execution below, the parties hereto have agreed to all the
terms and conditions of this Agreement.
PARTNER
|
VMN
|
|
|
Super League Gaming,
Inc.
|
Viacom Media Networks, a division
of
|
|
Viacom
International Inc.
|
|
|
By: /s/ Ann Hand
|
By: /s/ Mathew Evans
|
Name:
Ann
Hand
|
Name:
Mathew Evans
|
Title:
CEO
|
Title:
EVP Digital Kids & Family Group
|
|
|
|
|
|
|
|
|
*****
|
SUPER LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS
OF THIS DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED
CONFIDENTIAL TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY
FILED THE OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION.
|
Exhibit A
FORM STATEMENT OF WORK
This
Statement of Work (this “SOW”) is effective as of the date
above (the “SOW Effective
Date”) and is issued in accordance with the Master
Joint Promotion Agreement dated May 23, 2017 (the
“Agreement”) by
and between Viacom Media Networks, a division of Viacom
International Inc. (“VMN”) and Super League Gaming,
Inc. (“Partner”). Any capitalized term
not otherwise defined herein shall have the meaning ascribed in the
Agreement.
[TO BE
FILLED IN]
2.
Promotion Description. The
parties shall perform the following Services in connection with
this SOW (the “SOW
Services”):
VMN’s
Nickelodeon Group shall be the Anchor Sponsor for the following
Partner Event: [ ].
The
Promotion shall consist of the following elements:
3.
Deliverables and Milestone
Schedule.
The
parties will design, create, develop, produce and deliver each of
the following deliverables (“SOW Deliverables”) for the
Promotion in accordance with the specifications and delivery dates
set forth herein (which dates may change from time to time pursuant
to mutual written consent (email is sufficient)):
Deliverable
|
Responsible Party
|
Description
|
Due Date
|
|
|
|
|
|
|
|
|
The
term of this SOW shall commence as of the SOW Effective Date and
expire [on ______________][upon acceptance by VMN of all
Deliverables hereunder], unless earlier terminated in accordance
with the Agreement.
*****
|
SUPER
LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS
DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED CONFIDENTIAL
TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY FILED THE
OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE
COMMISSION.
|
[TO BE
FILLED IN]
IN
WITNESS WHEREOF, the parties have executed this Statement of Work
as of the SOW Effective Date listed above.
VIACOM
MEDIA NETWORKS, a division of
VIACOM
INTERNATIONAL INC.
|
|
SUPER LEAGUE GAMING, INC.
|
|
|
|
|
|
By:
|
|
|
By:
|
|
Name:
|
[___]
|
|
Name:
|
[___]
|
|
[Type
or Print]
|
|
|
[Type
or Print]
|
Title:
|
[___]
|
|
Title:
|
[___]
|
*****
|
SUPER LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS
OF THIS DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED
CONFIDENTIAL TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY
FILED THE OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION.
|
Exhibit B
VMN Marks Guidelines:
Partner agrees that: (a) it shall use the VMN Marks solely in
connection with the Promotions and in accordance with all of the
terms and conditions set forth herein; (b) the VMN Marks shall be
used in the exact form provided by VMN; (c) it shall not make or
permit the making of any copies of the VMN Marks, in whole or in
part except as reasonably required for the purposes herein
specified; (d) it shall not have the right to authorize others to
use the VMN Marks; (e) its use of the VMN Marks shall include all
standard proprietary notices prescribed by VMN; (f) its use of the
VMN Marks shall conform to quality standards which are consistent
with the high level of past practices for the use of the VMN Marks;
and, (g) all use of any materials incorporating the VMN Marks by
Partner shall be subject to VMN’s prior approval. All right,
title and interest in and to the VMN Marks, including all
associated goodwill, or in any copyright or other proprietary right
now existing or hereafter created pursuant to this Agreement, shall
remain vested in VMN subject to the rights of use granted in this
Agreement.
Partner shall promptly notify VMN of any apparently unauthorized
use or infringement by third parties of any rights granted to
Partner herein, and will cooperate fully in any action at law or in
equity undertaken by VMN with respect to such unauthorized use or
infringement.
Partner shall not institute any suit or take any action in
connection with any apparently unauthorized use or infringement
without first obtaining VMN’s prior written consent to do so,
and VMN shall have the sole right and discretion to determine
whether or not any action shall be taken on account of any such
unauthorized uses or infringements.
Partner Marks Guidelines:
VMN agrees that: (a) it shall use the Partner Marks solely in
connection with the Promotions and in accordance with all of the
terms and conditions set forth herein; (b) the Partner Marks shall
be used in the exact form provided by Partner; (c) it shall not
make or permit the making of any copies of the Partner Marks, in
whole or in part except as reasonably required for the purposes
herein specified; (d) it shall not have the right to authorize
others to use the Partner Marks; (e) its use of the Partner Marks
shall include all standard proprietary notices prescribed by
Partner; (f) its use of the Partner Marks shall conform to quality
standards which are consistent with the high level of past
practices for the use of the Partner Marks; and, (g) all use of any
materials incorporating the Partner Marks by VMN shall be subject
to Partner’s, prior approval. All right, title and interest
in and to the Partner Marks, including all associated goodwill, or
in any copyright or other proprietary right now existing or
hereafter created pursuant to this Agreement, shall remain vested
in Partner subject to the rights of use granted in this
Agreement.
VMN shall promptly notify Partner of any apparently unauthorized
use or infringement by third parties of any rights granted to VMN
herein, and will cooperate fully in any action at law or in equity
undertaken by Partner with respect to such unauthorized use or
infringement.
VMN shall not institute any suit or take any action in connection
with any apparently unauthorized use or infringement without first
obtaining Partner’s prior written consent to do so, and
Partner shall have the sole right and discretion to determine
whether or not any action shall be taken on account of any such
unauthorized uses or infringements.
*****
|
SUPER LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS
OF THIS DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED
CONFIDENTIAL TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY
FILED THE OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION.
|
Exhibit C
VMN Copyright
Notice:
© 2017 VIACOM
INTERNATIONAL INC. All Rights Reserved.
VMN Trademark
Notices:
Partner shall
include the following trademark symbol on all uses of the
Nickelodeon name and logo:
“Nickelodeon®”.
Partner
shall include the following trademark notice in proximity to all
uses of the Nickelodeon name and logo:
“Nickelodeon
and all related titles, characters and logos are trademarks of
Viacom International Inc.”
Partner Copyright
Notice:
SLG® is a
registered trademark of Super League Gaming, Inc.
Mojang
© 2009-2017. “Minecraft” is a trademark of Mojang
Synergies AB
*****
|
SUPER LEAGUE GAMING, INC. HAS REQUESTED THAT THE OMITTED PORTIONS
OF THIS DOCUMENT, WHICH ARE INDICATED BY [*****], BE AFFORDED
CONFIDENTIAL TREATMENT. SUPER LEAGUE GAMING, INC. HAS SEPARATELY
FILED THE OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION.
|