Thanks for visiting the Del Duca Sports Law Blog!

Friday, March 12, 2010

Class 3/15

Will be emphasizing intellectual property issues
Sports Law text: pgs 1125-1225
Entertainment Law text: pgs 133-183. 300-309

Also review the following:

Sample endorsement agreement -- click this link

Sample representation agreement between agent and athlete regarding endorsement marketing (see below)

Sample Confidentiality and Nondisclosure agreement (see below)


THIS REPRESENTATION AGREEMENT, made this day of , 199 , by and between Ronald M. Del Duca, Jr., a Virginia resident (herein called the "REPRESENTATIVE") and , a resident of (herein called the "CLIENT").

WHEREAS, CLIENT desires that and REPRESENTATIVE agrees that REPRESENTATIVE will provide various services to CLIENT.

NOW, THEREFORE, in consideration of the mutual promises made in this Agreement, both CLIENT and REPRESENTATIVE, each intending to be legally bound, agree as follows:

1. Term
The term ("Term") of this Agreement shall commence on the date of its execution and shall continue for a one (1) year period. The Term of this Agreement shall be considered automatically renewed for subsequent (1) year periods unless terminated by either party by written notice by at least thirty (30) days before the end of the Term or any extension.

2. Representative Services
During the Term of this Agreement, REPRESENTATIVE shall, as requested by CLIENT, represent, advise, counsel and assist CLIENT in regard to the solicitation and implementation of various revenue producing contracts (the "Contracts," as further defined in Paragraph four (4) herein), said services to include:
(a) Solicitation, negotiation and drafting of any and all Contracts on behalf of the CLIENT;
(b) Consultation and advice with respect to finances, taxes and tax planning relating to the Contracts; and
(c) Any other services mutually agreed between CLIENT and REPRESENTATIVE pertaining to the Contracts.

3. CLIENT Right of Approval
CLIENT shall at all times have the right to approve or disapprove all proposals, agreements or Contracts presented by REPRESENTATIVE pursuant to this Agreement. REPRESENTATIVE shall not have the authority to bind or commit CLIENT in any way without CLIENT'S prior written consent.

4. Compensation
A. Solicitation Activities. CLIENT shall pay to REPRESENTATIVE for the solicitation of Contract revenues on CLIENT'S behalf as done by REPRESENTATIVE a sum equal to percent ( %) of the gross amount of all monies or the fair market value of all properties received by CLIENT (or on CLIENT'S behalf) as the result of any Contract, including any substitutions, additions, modifications, renewals or extensions thereof, the negotiation of which commenced during the Term of this Agreement incident to REPRESENTATIVE'S solicitation activities, regardless of whether such income is received during the Term of this Agreement or after the termination of such Term. Contracts shall include service contracts, endorsement agreements, personal appearances or any other revenue producing arrangements, whether oral or written.
In case this Agreement between REPRESENTATIVE and CLIENT terminates, and subsequent to said period a Contract originally solicited by REPRESENTATIVE is renewed, if the period between the termination date of the Contract and the date a new Contract with the same sponsor (or its successor or affiliate) is made (the "Renewal Period") is twenty four (24) months or more, REPRESENTATIVE shall not be entitled to the beforenoted commission unless the solicitation activities of REPRESENTATIVE are involved in the new Contract. In case this Agreement between REPRESENTATIVE and CLIENT terminates, and if the Renewal Period of the Contract is less than twenty four (24) months, the REPRESENTATIVE shall be entitled to the commission on the value of the renewed Contract equal to the lesser of the value of the amount of the renewed Contract or the value contained in the original Contract (but not the excess).

For compensation to be paid to the REPRESENTATIVE by the CLIENT per this Agreement, the CLIENT shall make all such compensation payments to REPRESENTATIVE or an assignee of REPRESENTATIVE'S choosing within thirty (30) days of receipt of a payment from a Contract or in such annual installments as may be mutually agreed between CLIENT and REPRESENTATIVE.

B. Other Activities. In those instances that a Contract is entered into by CLIENT and REPRESENTATIVE provides services but not those relating to solicitation of said Contract, any fee to be charged by REPRESENTATIVE shall be mutually agreed upon between REPRESENTATIVE and CLIENT.

C. Taxes. CLIENT shall be responsible for the payment of any and all income taxes incurred in connection with compensation received by CLIENT pursuant to this Agreement. REPRESENTATIVE shall be responsible for the payment of income taxes incurred in connection with this Agreement for compensation he receives in connection with this Agreement.

5. Business Expenses
CLIENT shall reimburse REPRESENTATIVE for all reasonable and necessary communication expenses (i.e., telephone, telefax, and postage) actually incurred by REPRESENTATIVE during the Term hereof. CLIENT shall also reimburse REPRESENTATIVE for all reasonable and necessary travel, meal and lodging expenses incurred by REPRESENTATIVE during the Term hereof as related to REPRESENTATIVE's services and approved by CLIENT. CLIENT shall promptly pay all such expenses upon receipt. CLIENT shall be responsible for all his own expenses, including, but not limited to, travel, food and lodging, incurred incident to this Agreement.

6. Termination
A. For Cause. If REPRESENTATIVE or CLIENT shall fail to observe or perform any of the obligations created in this Agreement, the non-defaulting party shall have the right to elect to terminate the Agreement if such default is not cured within thirty (30) days after the non-defaulting party shall have given the defaulting party written notice specifying such default. Notice shall be per the provisions of paragraph Eight (8) herein.

B. Without Cause. Either party may terminate this Agreement without cause by giving fifteen (15) days prior written notice.

C. Enforceability. Notwithstanding the termination provisions of this Paragraph Six (6), the compensation provisions of Paragraph Four (4) shall remain in full force and effect at all times.

7. Assignment
Neither CLIENT nor REPRESENTATIVE shall have a right to assign or otherwise transfer the rights or obligations of this Agreement without the prior written consent of the other party.

[rest not shown]


THIS CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (the “Agreement”) made this __ day of __________, 20 __ , by and between Fusion Edge Media, LLC, a Virginia limited liability company (hereinafter “Fusion”) and [NAME OF COMPANY], a [type of entity and jurisdiction where formed] (hereinafter “Company”) is as follows:

WHEREAS, Fusion will be providing Company certain confidential and proprietary information for the purpose of entering into discussions regarding a potential business relationship between Fusion and Company relating to [state general purpose of business transaction] (hereinafter the “Purpose”); and

WHEREAS, Fusion and Company agree that said confidential and proprietary information is privileged and is not to be released for dissemination or disclosure to any third parties in any manner except as provided in this Agreement.

NOW THEREFORE, in consideration of Ten and 00/100 United States Dollars ($10.00), and of the mutual promises, covenants and obligations contained in this Agreement, the sufficiency of which is hereby acknowledged, both Fusion and Company agree, each intending to be legally bound, as follows:

1. Confidential Information. For purposes of this Agreement, “Confidential Information” includes, but is not limited to, any information, “know how”, scripts, writings, notes, any form of visual properties (including but not limited to graphics, photos, video, DVDs, motion pictures, story board and/or pre-visualization of motion pictures), patent, copyright, trade secret, process, technique, program, design, formula, marketing, advertising, data (financial, commercial, sales, programming or otherwise), written materials, compositions, drawings, diagrams, programs (computer or software), studies, work in progress, visual demonstrations, business plans, budgets, forecasts, customer data, ideas, concepts, characters, story outlines and other data, whether in oral, written, graphic, electronic form, or any other form or medium whatsoever, which may be exchanged between the parties in pursuance of the Purpose of this Agreement or otherwise. The term “Confidential Information” shall not include information which is actually known to Company prior to the time of receipt of such Confidential Information as can be established by evidence that would be acceptable to a Court of competent jurisdiction.

2. Company’s Obligations.

A. All Confidential Information constitutes the sole and exclusive property and the Confidential Information of Fusion, which Fusion is entitled to protect. Company shall only use the Confidential Information strictly for the Purpose. Company shall hold and maintain all Confidential Information in trust and confidence for Fusion and shall use commercially reasonable efforts to protect the Confidential Information from any harm, tampering, unauthorized access, sabotage, access, exploitation, manipulation, modification, interference, misuse, misappropriation, copying or disclosure. Company shall not, without the prior written consent of Fusion, disclose any Confidential Information to any person or entity other than to such of its employees, officers, directors, contractors, agents and professional advisors (hereinafter the “Company Personnel”), as applicable, and in such event only to the extent necessary for the Purpose and provided that Company shall, prior to disclosing the Confidential Information to the Company Personnel issue appropriate instructions to them to satisfy its obligations in this Agreement and obtain their agreement to receive and use the Confidential Information on a confidential basis on the same conditions as contained in this Agreement. In addition, the Company shall be fully responsible to ensure that each of the Company Personnel handles the Confidential Information as required by this Agreement, and Company shall be liable for any loss or damage resulting from any failure to do so. The Company shall notify Fusion promptly of any unauthorized use, disclosure or possession of the Confidential Information that comes to the Company’s attention.

B. The Confidential Information shall not be copied, reproduced in any form or stored in a retrieval system or data base by the Company without prior written consent of the Fusion, except for such copies and storage as may reasonably be required internally by Company for the Purpose.

C. Upon request of Fusion, Company shall immediately return to Fusion all Confidential Information, including all records, summaries, analyses, notes or other documents and all copies thereof, in any form whatsoever, under the power or control of Company and destroy the Confidential Information from all retrieval systems and databases. The return of such documents to the Fusion shall in no event relieve Company of its obligations of confidentiality set out in this Agreement with respect to such returned Confidential Information.

D. In the event that the business relationship contemplated by this Agreement does not occur, Company (or any of its affiliates, successors or other business relationships) will not use or permit the use of any of the Confidential Information for its own benefit, nor for the benefit of any third party or for any other purpose. Regardless of whether the business relationship contemplated by this Agreement occurs, the rights and obligations set out in this Agreement shall survive from the date of this Agreement and continue for a period of five (5) years thereafter.

3. Rights of Company. Neither this Agreement nor the disclosure of any Confidential Information to Company shall be construed as granting to Company any rights in, to or in respect of the Confidential Information, including, but not limited to, rights by license, or as the basis for development, research and/or production of items or services.

4. Breach of Agreement. The provisions hereof are necessary to protect the trade, commercial and financial interests of Fusion. The parties acknowledge and agree that any breach whatsoever of the covenants, provisions and restrictions herein contained by Company shall constitute a breach of Company's obligations to Fusion which may cause serious damage and injury to Fusion which cannot be fully or adequately compensated by monetary damages. The parties accordingly agree that in addition to claiming damages, Fusion may seek interim and permanent equitable relief against Company, including without limitation interim, interlocutory and permanent injunctive relief, in the event of any breach of this Agreement. All such rights and remedies shall be cumulative and in addition to any and all other rights and remedies whatsoever to which Fusion may be entitled.

5. No Joint Venture or Partnership. The parties agree that the execution of this Agreement does not in any way constitute a partnership or joint venture or binding commitment on the part of either party to enter into or complete negotiations or any transaction with the other party.

6. Entire Agreement: Binding Effects; Severability. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes and overrides any prior or other agreements, representations, warranties, understandings and explanations between the parties hereto with respect to the subject matter of this Agreement. This Agreement shall be binding upon the trustees, receiver, heirs, executors, administrators, successors and assigns of the parties. The invalidity or unenforceability of any provision or part thereof of this Agreement shall not affect the validity or enforceability of any other provision and such invalid or unenforceable provision shall be deemed severed from the remaining provisions herein and such remaining provisions shall continue in full force and effect.

7. Governing Law. This Agreement shall be exclusively governed by, and construed in accordance with, the laws of the Commonwealth of Virginia and the laws of the United States applicable therein. The parties hereby submit to the exclusive jurisdiction of the courts located in the Commonwealth of Virginia, both state and federal.

8. Waiver of Breach. No waiver of any breach of any provision of this Agreement will be effective or binding unless in writing and signed by Fusion and will be limited to the specific breach waived unless otherwise provided in the written waiver.

9. Miscellaneous. This Agreement may be executed in counterparts with the same effect as if both parties hereto had signed the same document. Each counterpart shall be as valid and binding as each other counterpart and all counterparts shall be construed together and shall constitute one agreement. Execution and delivery of this Agreement by fax transmission shall constitute legal and binding execution and delivery of this Agreement. The recitals to this Agreement (i.e., WHEREAS) are hereby incorporated into and form part of this Agreement.

IN WITNESS WHEREOF Fusion and Company have executed this Agreement as of the date first above written.
Fusion Edge Media, LLC

By __________, its __________


By __________, its __________