THEATER AGREEMENT
Exhibit 10.5
This
Agreement (“Agreement”) is entered into is effective as
of the final date of execution hereof (the “Effective
Date”), by and between _________________, on the one hand,
and Super League Gaming, Inc., a Delaware corporation
(“SLG”), on the other hand. _______________ and SLG are
collectively referred to herein as the
“Parties”.
RECITALS
WHEREAS, Super
League Gaming (“SLG”), has developed a revolutionary
social gaming league experience that utilizes a proprietary
technology platform enabling gamers and spectators to experience
League of Legends in a multi-player format, Minecraft in a
single-player and multi-player format, as well as other esports
games (in single player and multi-player format) added by SLG in
the future;
WHEREAS, _________
desires to retain SLG on the terms outlined hereinbelow;
and
WHEREAS, SLG
desires to provide _________ on the terms outlined
hereinbelow.
NOW,
THEREFORE, in consideration of the mutual covenants and promises
set forth hereinabove, the receipt and sufficiency of which is
hereby mutually acknowledged, the Parties hereby agree as
follows:
1. SLG
Events. _______________ and SLG agree that SLG events will
commence on the dates, times, and at the locations mutually agreed
upon in a separate writing (all SLG events are collectively
referred to herein as the “SLG Events”). All scheduling
of SLG Events shall be set forth in separate addendums hereto and
mutually agreed upon by the Parties.
2. Obligations
of _______________. _______________ shall have the following
obligations:
(a) Theater Seating
Requirement. The selection of the auditoriums in which SLG
Events are held shall be made collaboratively by the Parties to
ensure a first-class experience for the gaming
participants.
(b) In-Theater
Marketing. _______________ shall market the SLG Events to
its customers at least fourteen (14) days prior to each event,
consisting of the following: (i) _______________ shall send at
least one SLG-dedicated email to its customer and loyalty program
email list, geo-targeted to participating theaters; (ii)
_______________ shall exhibit at least two (2) SLG or
_______________ designed (subject to SLG approval to maintain
compliance with game publisher requirements) posters in each of its
participating theater lobbies; and (iii)
_______________ shall
promote SLG on its social platforms (e.g., Facebook, Twitter,
Instagram and others) that reference the participating
theaters.
(c) Installation and
Set-Up. _______________ shall provide all personnel required
for the installation and testing of the SLG software and hardware
in each auditorium in which SLG Events will be held. SLG personnel
and/or contractors will orchestrate the installation in
collaboration with _______________ management as well as the
applicable staff at the participating theaters. Further,
_______________ shall schedule an appropriate time for the
foregoing to occur with theater-level contacts at least ten (10)
days prior to the initial SLG Event.
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(d) Dedicated Theater
Staff. For all SLG Events, _______________ agrees to provide
one (1) dedicated staff member during SLG Events. SLG will provide
a brief training manual for the dedicated staff member(s) to review
in advance of the initial SLG Event.
(e) Technical
Operations Support Availability. For all SLG Events,
_______________ agrees to provide a specific technical operations
support personnel (on-site and remotely) to address any
_______________ technology issues which arise prior to or during
SLG Events (e.g., power, projector or other issues).
_______________ shall provide contact information for the remote
(high level manager) and on-site technical support individuals
(i.e., phone and email) for rapid intervention to address all
issues.
3. Obligations of
SLG.
a. Ticket Sales;
Reporting. All SLG Event ticket sales shall be made via the
SLG ticketing website and will be the sole responsibility of SLG.
SLG shall provide _______________ with daily ticket reports
(provided for the prior business day) during each period when
ticket sales are ongoing for SLG Events at
_______________.
b. Software and
Hardware. SLG shall be solely responsible for providing all
technology to be utilized for SLG Events at participating theaters,
including, among other things, all web systems, player profiles,
leaderboards, and in-theater experience, all of which shall utilize
SLG’s hardware and proprietary software.
c. Installation &
Testing. SLG shall provide written documentation to
_______________ to be utilized by its staff relating to the
installation of SLG’s software and hardware in the
auditoriums in which SLG Events will be held. Prior to the initial
event in each of the applicable auditoriums, SLG shall confirm with
_______________ that all software and hardware is in good working
order.
d. Maintenance.
SLG shall be solely responsible for any maintenance that may be
required on the SLG hardware, as well as any software upgrades,
patches or otherwise, that may be required.
e. Marketing.
SLG will generate market demand for SLG Events through a
combination of means, including its game publisher partners, emails
to its existing registered player database, and social media
channels, among others.
f. Dedicated On-Site
SLG Personnel. SLG shall provide at least one (1) dedicated
SLG personnel at participating theaters during each SLG Event to
assist participants as well as _______________ staff.
g. Operations
Manual. SLG shall provide _______________ with an Operations
Manual that addresses installation procedures as well as event
operations, among other things. The Operations Manual shall be used
by _______________ staff at all times to ensure a best-in-class
experience for gaming participants and efficient operations at SLG
Events.
4. Revenue Split;
Payment Terms. Ticket sales from SLG Events will be
allocated as follows: (i) Adjusted Gross Revenue (as defined below)
will be split ___% in favor of SLG and ___% in favor of
_______________. Adjusted Gross Revenue is defined as (a) gross
ticket sales, less discounts comps and promotions, from SLG Events,
less (b) sales tax, less (c) ___% of gross ticket sales consisting
of a stripe, technology, intellectual property license, bandwidth
and maintenance fee. SLG shall be solely responsible for payment of
all game publisher license fees which consist of up to ___% of
SLG’s portion of Adjusted Gross Revenue.
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a. Payment
Terms. During the Term, SLG shall pay _______________
net
30 from (i) the final day of each calendar month for all SLG
Event revenue realized by SLG for the prior month at
_______________ pursuant to U.S. generally accepted accounting
principles (“GAAP”). For clarity purposes, SLG
recognizes revenues from multi-week leagues on the following basis:
(i) ticket revenues for each SLG multi-week league are divided by
the number of weeks of league play, the product of which is
recognized in the month that the event occurs. Thus, multi-week
leagues that occur over a two-month period will be paid in two (2)
monthly tranches. Payments shall be made to _______________ via
electronic transfer to the bank account designated by
_______________ in writing or via check. SLG shall include a
written report with each monthly payment.
5. Ownership of
Software & Hardware. For the avoidance of doubt, all SLG
software and hardware utilized in conjunction with the SLG Events
shall be the exclusive property of SLG. No ownership to the
foregoing is provided under this Agreement. The SLG software and
hardware may only be utilized in connection with the SLG Events or
as otherwise mutually agreed upon in writing. Further,
_______________ staff shall not unplug the HDMI or other cabling
connecting the SLG hardware to the projectors located in the
auditoriums holding SLG events without the express prior written
consent of SLG.
6. Bandwidth
Installation Rights.
SLG shall have the right to install, in at least one (1) theater
location per city where SLG Events are offered at _______________
(which cities shall be mutually agreed upon by the Parties),
broadband Internet access which may consist of fiber, DSL, cable or
any other broadband Internet alternative of SLG’s choosing
(collectively, the “Bandwidth”). SLG shall be solely
responsible for all bandwidth costs. In consideration thereof, SLG
shall have the exclusive right to share access of the Bandwidth
with _______________ for SLG Events as well as “League of
Legends watch events” and other content as mutually agreed
upon by the Parties.
7. Trademark
Usage. SLG shall have the right hereunder to utilize the
trademark(s) of _______________ during the Term in conformity with
_______________’s trademark usage guidelines. The
_______________ trademark(s) will be utilized solely by SLG in
conjunction with the promotion of Super League Gaming, including
all SLG Events.
8. Term;
Exclusivity. The Agreement shall have a term of ____ (__)
years (“Term”), and shall automatically renew for
successive one (1) year periods unless terminated in writing no
less than ninety (90) days prior to the conclusion of the then
existing term.
a. Exclusivity.
SLG will incur hardware and installation expenses in excess of
$_______ USD for each _______________ auditorium which hosts SLG
Events. The foregoing costs will be the sole responsibility of SLG
in exchange for SLG being the exclusive provider of any and all
multi-player, participatory gaming at _______________ during the
Term.
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9. Representation and
Warranties; Indemnification. SLG represents, warrants and
covenants that (i) the software to be utilized with respect to the
SLG Events is of original development by SLG, (ii) SLG is the owner
of the software and hardware, (iii) SLG has the unfettered right to
utilize it in connection with the SLG Events, (iv) the SLG software
and hardware is free and clear of any liens, claims and
encumbrances, and (v) the SLG software and hardware shall not
damage any of _______________’s software or hardware or
result in a loss of information. SLG will indemnify, defend and
hold _______________ and its affiliates, employees, agents,
officers, and directors (collectively, “_______________
Indemnified Parties”) harmless, at SLG’s expense, from
any claims, demands, actions, suits, damages, losses, liabilities,
costs or expenses of any nature, including, without limitation,
reasonable attorneys’ fees, incurred by _______________
Indemnified Parties as a result of any breach of this Agreement by
SLG or any of the representations or warranties contained in this
Section 9, including but not limited to claims of infringement or
misappropriation. In the event of an infringement claim, SLG shall
have no obligation pursuant to this Section 9 to the extent the
claim is caused by the modification of the software or hardware by
_______________, its employees, contractors or agents. If the
unmodified software or hardware becomes, or in SLG’s opinion
is likely to become, the subject of a claim of infringement or
misappropriation, SLG shall, at its option and expense, promptly
either: (i) modify or replace the software and/or hardware, as the
case may be, to be non-infringing while giving equivalent
performance and functionality, or (ii) obtain for _______________
the right to continue using the software and/or hardware, as the
case may be, under terms substantially similar to those then in
effect under this Agreement.
a. Conditions.
In the event a party seeks indemnity as provided in this Section 9,
the indemnified party will: (i) notify the indemnifying party in
writing promptly of a claim (provided that failure to provide such
notice will not relieve the indemnifying party of its obligations
under this Section 9 except to the extent such failure materially
prejudices the indemnifying party’s ability to defend or
settle such claim); and, (ii) grant the indemnifying party the sole
control of the settlement, compromise, negotiation, and defense of
any such action, except that the indemnifying party shall not enter
into any settlement that affects the indemnified party’s
rights or interests without the indemnified party’s prior
written consent; and (iii) provide the indemnifying party with all
reasonably available information relating to the action that is
reasonably requested by the indemnifying party. The Parties agree
to cooperate in good faith in the defense of any legal action or
suit that causes one party to invoke its indemnification rights
under this Section 9.
10. Disclaimer of
Warranties.
EXCEPT AS OTHERWISE EXPRESSLY
WARRANTED IN THIS AGREEMENT, SLG DISCLAIMS ALL WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF
PERFORMANCE, OR USAGE OF TRADE. _______________ HEREBY ACKNOWLEDGES
AND AGREES THAT IN EACH JURISDICTION IN WHICH ANY SUCH DISCLAIMER
IS UNENFORCEABLE, THE DURATION OF ANY SUCH IMPLIED SOFTWARE
PERFORMANCE WARRANTIES IS LIMITED TO THIRTY (30) DAYS FROM THE
DELIVERY DATE OF THE SOFTWARE AND HARDWARE; PROVIDED, HOWEVER, THAT
THE SOLE REMEDY OF _______________ FOR BREACH OF ANY SUCH IMPLIED
SOFTWARE AND HARDWARE PERFORMANCE WARRANTY SHALL BE THAT SLG WILL,
AT ITS OPTION, REPAIR OR REPLACE THE SOFTWARE AND HARDWARE TO BE
UTILIZED IN CONJUNCTION WITH THE SLG EVENTS.
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11. Limitation
of Liability. EXCEPT
FOR ANY CLAIMS ARISING UNDER SECTIONS 9 (INDEMNIFICATION), OR 12(d)
(CONFIDENTIAL INFORMATION), OR WHICH ARE BASED UPON GROSS
NEGLIGENCE OR INTENTIONAL MISCONDUCT, REGARDLESS OF WHETHER ANY
REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR
OTHERWISE, TO THE EXTENT PERMITTED BY THE LAW OF THE JURSIDICTION
IN WHICH THIS AGREEMENT IS ENTERED INTO: (A) THE PARTIES WILL NOT
BE LIABLE TO ONE ANOTHER FOR ANY INDIRECT, EXEMPLARY, SPECIAL,
CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY CHARACTER, INCLUDING,
BUT NOT LIMITED TO, DAMAGES FOR COMPUTER MALFUNCTION, LOSS OF
INFORMATION, LOST PROFITS AND BUSINESS INTERRUPTION, AND THE COST
TO OBTAIN SUBSTITUTE SOFTWARE OR HARDWARE, ARISING IN ANY WAY OUT
OF THIS AGREEMENT OR THE USE OF (OR INABILITY TO USE) THE SOFTWARE
OR HARDWARE FOR SLG EVENTS, HOWEVER CAUSED, AND WHETHER ARISING
UNDER A THEORY OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF
ONE OF THE PARTIES WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
AND (B) IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE
OTHER EXCEED THE COLLECTIVE SUM OF THE ADJUSTED GROSS REVENUE. SOME
STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THE ABOVE
LIMITATIONS MAY NOT APPLY; PROVIDED, HOWEVER, THE PARTIES ARE
ENTERING INTO THIS AGREEMENT ON THE EXPRESS CONDITION THAT EACH OF
THEM AGREES TO THE "DISCLAIMER OF WARRANTIES" AND "LIMITATION OF
LIABILITY" PROVISIONS HEREIN.
12. General
Provisions.
(a) Assignment.
Neither party may assign this Agreement, in whole or in part,
without prior written notice to the other, which consent shall not
be unreasonably withheld or delayed. Notwithstanding the foregoing,
either party may assign this Agreement in the event of a merger,
sale of substantially all of the stock, assets or business, or
other reorganization involving the assigning party in which the
assigning party is not the surviving entity, and the other
party’s prior written consent shall not be required in such
instance. Without limiting the foregoing, this Agreement will bind
and inure to the benefit of each party’s permitted successors
and assigns.
(b) Waiver,
Amendment, Modification. No
waiver, amendment or modification, including by custom, usage of
trade, or course of dealing, of any provision of this Agreement
will be effective unless it is in writing and signed by the party
against whom such waiver, amendment or modification is sought to be
enforced. No waiver by any party of any default in performance on
the part of the other party under this Agreement or of any breach
or series of breaches by the other party of any of the terms or
conditions of this Agreement will constitute a waiver of any
subsequent default in performance under this Agreement or any
subsequent breach of any terms or conditions within. Performance of
any obligation required of a party under this Agreement may be
waived only by a written waiver signed by a duly authorized officer
of the other party; such waiver will be effective only with respect
to the specific obligation described therein.
(c) Force
Majeure. Neither party will be deemed in default of this
Agreement to the extent that performance of its obligations, or
attempts to cure any breach, are delayed or prevented by reason of
circumstance beyond its reasonable control, including without
limitation fire, natural disaster, earthquake, accidents or other
acts of God and which renders their performance impossible ("Force
Majeure"), provided that the party seeking to delay its performance
gives the other written notice of any such Force Majeure within
five (5) days after the discovery, and further provided that such
party uses its good faith efforts to cure the Force Majeure. This
Section 12(c) will not be applicable to any payment obligations of
either party.
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(d) Confidential
Information. Each party
acknowledges that it may be furnished with or may otherwise receive
or have access to information or material of the other party that
the disclosing party deems to be confidential, including, without
limitation, the terms and existence of this Agreement, information
that relates to past, present or future products, software,
hardware, research development, inventions, processes, techniques,
designs or technical information, data, and marketing plans
(collectively, the "Confidential Information"). Each party agrees
to preserve and protect the confidentiality of the other
party’s Confidential Information and all physical and
electronic forms thereof from unauthorized or accidental loss,
alteration, destruction or damage, whether disclosed to the other
party before this Agreement is signed or afterward. In addition,
neither party will use or disclose the Confidential Information of
the other party except as specifically required to perform its
obligations under this Agreement. The receiving party will disclose
Confidential Information of the disclosing party only to those of
the receiving party’s employees or agents with a “need
to know” in connection with the receiving party’s
performance of its obligations under this Agreement. However, the
receiving party may disclose the Confidential Information of the
disclosing party to the extent such disclosure is required to
comply with applicable law or the valid order or requirement of a
governmental or regulatory agency or court of competent
jurisdiction, provided that the receiving party (a) first notifies
in writing the disclosing party (unless prohibited by law or such
order) in such time as to permit the disclosing party to
participate in the disclosure response, and reasonably cooperates
with the disclosing party to prevent or otherwise restrict such
disclosure; (b) restricts such disclosure to the maximum extent
legally permissible. The receiving party will promptly notify the
disclosing party in writing of any actual or suspected misuse,
misappropriation or unauthorized disclosure of Confidential
Information by the receiving party which may come to the receiving
party’s attention. The obligations of each party to protect
Confidential Information shall not apply to information which the
recipient can demonstrate that: (a) became publicly known through
no act or failure of the recipient; (b) was rightfully in the
recipient’s possession prior to disclosure by the disclosing
party without any obligation to hold it in confidence; (c) became
rightfully known to the recipient from a third party free to
disclose such information without restriction; (d) is approved in
writing by the disclosing party for disclosure without restriction;
or (e) is disclosed after the termination of the recipient’s
duty of confidentiality as specified herein.
(e) Insurance
Coverage. SLG will maintain the following insurance coverage
and will name _______________ as an additional insured on its
General Liability Insurance policy:
(1) Workers’
Compensation Insurance. Workers’ compensation insurance
as required by law or regulation; and
(2) General
Liability Insurance.
Commercial general liability coverage with limits of not less than
$1,000,000 combined single limit for bodily injury and property
damage, including personal injury and death, and contractor’s
protective liability, and products and completed operations
coverage in an amount not less than $2,000,000 in the
aggregate.
(f) Independent
Contractor. Nothing contained in this Agreement will be deemed
to place the parties in the relationship of an employer/employee,
partners, or joint venturers. Neither party will have any right to
obligate or bind the other in any manner except as specifically
provided for in this Agreement. Each party agrees and acknowledges
that it will not hold itself out as an authorized agent with the
power to bind the other party in any manner. Each party will be
responsible for any withholding taxes, payroll taxes, disability
insurance payments, unemployment taxes, and other similar taxes or
charges with respect to its activities in relation to performance
of its obligations under this Agreement.
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(g) Cumulative
Rights. Any specific right or remedy provided in this
Agreement will not be exclusive, but will be cumulative upon all
other rights and remedies set forth in this Agreement and allowed
under applicable law.
(h) Governing
Law. This Agreement will be
governed by the laws of the State of California, without regard to
its conflicts of law principles.
(i) Entire
Agreement. The Parties acknowledge that this Agreement
expresses their entire understanding and agreement, and that there
have been no warranties, representations, covenants or
understandings made by either party to the other except such as are
expressly set forth in this Agreement. The parties further
acknowledge that this Agreement supersedes any and all prior
agreements, written or oral, between the parties with respect to
the matters set forth herein.
(j) Counterparts.
This Agreement may be executed in
multiple counterparts, any of which will be deemed an original, but
all of which will constitute one and the same
instrument.
(k) Severability.
In the event that any provision of
this Agreement is found invalid or unenforceable pursuant to
judicial decree or decision, the remainder will remain valid and
enforceable according to its terms. Without limiting the foregoing,
it is expressly understood and agreed that each and every provision
of this Agreement that provides for a limitation of liability,
disclaimer of warranties, or exclusion of damages is intended by
the parties to be severable and independent of any other provision
and to be enforced as such. Further, it is expressly understood and
agreed that in the event any remedy in this Agreement is determined
to have failed of its essential purpose, all other limitations of
liability and exclusion of damages set forth herein will remain in
full force and effect.
(l) Notices.
All notices, demands or consents required or permitted in this
Agreement will be in writing and will be hand delivered, sent by
overnight courier, or mailed certified first-class mail (postage
prepaid), return receipt requested to the respective parties at
their respective principal business address. Any notice required or
permitted to be given by the provisions of this Agreement will be
conclusively deemed to have been received on the day it is
delivered to that party by U.S. Mail with acknowledgment of receipt
or by any commercial courier providing equivalent acknowledgment of
receipt.
To
SLG:
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
General Counsel
To
_______________:
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have
entered into this Agreement as of the Effective Date.
By:
Date:
▇▇▇
▇▇▇▇
CEO
& President
By:
Date:
Name:
Title:
[Signature page to Agreement]
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