Blizzard Overwatch Contenders Sponsorship Terms - Australia
- Term. The term of this Agreement commences on the Effective Date and shall continue until the earlier of (a) December 31, 2023 (the “Term”), unless earlier terminated by the parties as set forth in Schedule B attached hereto. Following the expiration or earlier termination of this Agreement, the parties shall have no further rights or obligations to each other except for those obligations that are expressly made to extend beyond the Term, which shall survive and remain in full force and effect.
- Sponsorship Benefits. In exchange for the consideration described in Section 3 below, Sponsor will receive the marketing assets and other sponsorship benefits (the “Sponsorship Benefits”) set forth on Schedule A, attached hereto and incorporated herein by reference, and subject in all respects to compliance with all Applicable Laws (as defined in Schedule B). The Sponsorship Benefits shall apply during the Term to Australia and New Zealand (the “Territory”) except that elements integrated into the broadcast may appear worldwide, and neither party shall have any rights or obligations to one another with respect to any sponsorship or marketing assets outside of the Territory nor after the expiration or earlier termination of the Term.
- Sponsor License. Agent hereby grants, and shall procure that Sponsor hereby grants to Blizzard and its affiliates a limited, non-exclusive license to copy, reproduce, distribute, and otherwise use certain Sponsor property, trademarks, and other materials provided or approved by Sponsor (collectively, the “Sponsor Materials”) at Contenders events (“Events”) and through websites and social media channels controlled by Blizzard or its affiliates in connection with the Sponsorship Benefits and the Sponsored Activity within the Territory and as otherwise contemplated herein during the Term, it being understood that any such Sponsor Materials provided by Sponsor to Blizzard shall be deemed pre-approved (subject to the below) and their intended use compliant with Applicable Laws. Notwithstanding the foregoing regarding pre-approval, where Sponsor explicitly informs Blizzard that express approval by Sponsor of each use of the Sponsor Materials is required by local laws and/or regulation, then email approval shall be provided by Sponsor without being unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, to the extent the Sponsorship Benefits include placement in Contenders’ official match broadcasts or other media productions, Agent confirms, on behalf of itself and Sponsor, that Blizzard will have the right, but not the obligation, to distribute the Sponsorship Benefits on a perpetual, worldwide basis and the license granted herein shall be extended for this purpose. For the avoidance of doubt, Blizzard shall have the non-exclusive, perpetual, worldwide license and right (but not the obligation) to include the Sponsor Materials in any broadcast, transmission, compilation, cut-down, derivative video, or video-on-demand version of any League events in which they may appear, on any media now known or hereafter developed. Agent acknowledges, on its own behalf and that of Sponsor: (i) that Sponsor Materials used by Blizzard in compliance with the terms herein may be accessed by individuals outside the Territory; and (ii) may continue to be accessible after the Term. Any usage by Blizzard of the Sponsor Materials other than as specifically set out herein, but in connection with this Agreement and/or the subject matter hereof must be pre-approved in writing (email being sufficient) by Agent, not to be unreasonably withheld, conditioned or delayed.
- Blizzard License. Blizzard hereby grants to Sponsor a limited, non-exclusive license to copy, reproduce, distribute, and otherwise use certain Blizzard property, trademarks, and other materials provided or approved by Blizzard (collectively, the “Blizzard Materials”) solely to the extent the Blizzard Materials are incorporated into the Sponsorship Benefits as set forth in Schedule A produced by Blizzard as set forth in Exhibit A, including, but not limited to, on Sponsor’s digital and social media platforms and in co-marketing activities (as applicable), provided that any such permitted use is made solely during the Term and within the Territory. Any usage by Sponsor of the Blizzard Materials in connection with this Agreement and/or the subject matter thereof shall be subject to the prior written approval of Blizzard (email sufficient, not to be unreasonably withheld or delayed), compliance with all Applicable Laws, and the Overwatch League Style Guide (as such document may be amended from time to time) and to the extent the document (and any amendments thereto) are communicated to Agent or Sponsor. All rights not specifically granted to Sponsor with respect to Blizzard Materials pursuant to this Section are hereby reserved.
- Exclusive Negotiation Period. Blizzard will exclusively negotiate in good faith the renewal of this Agreement in respect of the Sponsorship Benefits related to Contenders, for a further term with Agent on behalf of Sponsor during the period November 1, 2023 to January 31, 2024 (the “Exclusive Negotiation Period“). For the avoidance of doubt, Blizzard must not solicit or negotiate any proposal for sponsorship for Overwatch Contenders in the Territory from any quick service restaurant competitor of Sponsor during the Exclusive Negotiation Period.
- Limited right of refusal. If no agreement is reached between the parties by the end of the Exclusive Negotiation Period, and Blizzard desires at its sole discretion to enter into an agreement with a third party for the exclusive sponsorship of the Sponsorship Activity in the QSR Category for the following year, Sponsor will have a limited right of first refusal on the following terms. Prior to Blizzard entering into such agreement with a third party in the QSR Category, Blizzard will present the terms of such potential third party QSR agreement to Agent on Sponsor’s behalf (with the third party’s name and information redacted as Blizzard determines necessary) (“Third Party Offer”). Sponsor will have five (5) business days after its receipt of the Third Party Offer to accept and agree to the Third Party Offer in its entirety in all respects, with the only change being the insertion of Sponsor’s name. If Sponsor does not so accept and agree, Sponsor’s rights under this Section 8 shall terminate and Blizzard shall have no further obligation under this Section 8 to Sponsor or Agent. For the avoidance of doubt, Sponsor shall have no right of refusal with respect to any sponsorship offer made or received by Blizzard after January 31, 2024.
- Schedules and Exhibits. All schedules and exhibits attached hereto are incorporated herein by reference.
The following Sponsorship Benefits will be provided to Sponsor in connection with the sponsorship hereunder for Overwatch Contenders Australia program in 2023. Other inclusions may be agreed in writing between the parties from time to time but Blizzard shall have no obligation to include any benefit not specifically provided for below. Sponsorship Benefits shall be solely for the benefit of the Sponsor and shall not be used, or transferred, to any other entity or individual, including without limitation the Agent.
1. CATEGORY EXCLUSIVITY
a. Blizzard shall not provide Sponsorship Benefits in connection with Contenders Australia, in the Territory, to any third party in the QSR Category For purposes of this Agreement, the “QSR Category,” is defined to include: (i) any quick service restaurant (“QSR”) whose primary specialty item is a burger; (ii) any QSR whose primary specialty menu item is chicken; (iii) any QSR whose primary specialty item is pizza; (iv) any QSR who features a breakfast menu; (v) any QSR who has a significant presence in Australia, sells a specialty coffee beverage as their primary specialty menu item, or any QSR that serves inexpensive menu items similar to Sponsor’s menu; or (vi) any food facility in the quick service sector which has a significant presence in the Territory provided that Blizzard shall be permitted to authorize activities which would be or are similar to Sponsorship Benefits to The Coca-Cola Company (“Coke”) in relation to any co-promotional campaigns Coke runs with another QSR in the Territory. For clarity, such
exclusivity shall only apply to Contenders Australia, and Blizzard shall not have any requirement to observe these provisions in connection with Contenders in any other territory.
2. IN-BROADCAST INTEGRATION
a. Sponsor broadcast integration shall include:
i) Maccas Play of the Game feature, presented by McDonalds Australia at minimum once per
ii) Sponsor will receive: (1) one in-broadcast ‘Feel Good’ Promotional Feature that includes one
(1) key product messaging, used to support Sponsor’s marketing strategy and key national campaigns through mutually agreed upon executions such as squeezeback banners, pull- throughs, or trackers;
(1) Creative can include product integration and messaging to be focused around value and delivery.
(2) Sponsor must notify Blizzard fourteen (14) days in advance to make any changes to the
creative or execution of the Promotional Feature.
iii) Logo inclusion on in-stream graphics:
(1) Prize Pool;
(6) Caster screen background;
(7) Next Match;
(8) Map Victory Screen;
(9) End stream;
iv) Commentator call out once (1) per broadcast.
b. All graphics are subject to the Contenders Style Guide and Blizzard’s written approval. Sponsor branding will be included in the same format as all other sponsors.
c. Agent hereby acknowledges and agrees (on behalf of itself and the Sponsor) that Blizzard may, at its sole discretion, broadcast certain Events on a delay and that, where such Events are broadcast on a non-live basis, Blizzard may release, publish and publicise the results of any matches included therein upon completion of the matches and prior to the relevant broadcast. Blizzard confirms that it intends that all Events shall be broadcast live or nearly- live, unless Sponsor is notified otherwise in writing by Blizzard.
3. Overwatch World Cup APAC B Qualifier 2023
a. Sponsor broadcast integration shall include:
i) McDonalds Commentator call out at beginning of each broadcast day
ii) Key product messaging, used to support McDonalds
iii) Strategy and key national campaigns through agreed upon
iv) Executions such as banners, TVC placements and custom
v) Formats (to be discussed as needed) Logo inclusion on in-stream graphics:
vi) • Logo inclusion on in-stream graphics with 25% share of voice
vii) • Prize Pool; Schedule; Standings; Victory; Waiting;
viii) • Next Match; Map Victory Screen;
ix) End stream; Commentator call out once (1) per broadcast.
b. Sponsorship Benefits other than those listed at 3(a) above shall not be applicable unless agreed in writing by the parties.
c. All graphics are subject to the Overwatch World Cup Style Guide and Blizzard’s written approval. Sponsor branding will be included in the same format as all other sponsors.
d. Agent hereby acknowledges and agrees (on behalf of itself and the Sponsor) that Blizzard may, at its sole discretion, broadcast certain Events on a delay and that, where such Events are broadcast on a non-live basis, Blizzard may release, publish and publicise the results of any matches included therein upon completion of the matches and prior to the relevant broadcast. Blizzard confirms that it intends that all Events shall be broadcast live or nearly- live, unless Sponsor is notified otherwise in writing by Blizzard.
4. DIGITAL MEDIA ASSETS
a. Sponsor to be granted access to Overwatch Contenders Australia footage highlights and marks for use on Sponsor’s owned channels in the Territory, subject to Blizzard’s approval in each case.
5. LIVE EVENT INTEGRATION
a. To the extent that live, in-person Contenders tournament events (“Live Events”) take place in the Territory, the parties shall discuss in good faith any additional benefits to which Sponsor shall be entitled in relation to such Live Events, with such additional benefits to be mutually agreed (“Live Event Benefit”) (provided that failure to agree any additional benefits shall not be deemed a breach hereof.)
b. Notwithstanding any additional Live Event Benefits agreed between the parties, Sponsor shall remain entitled to the In-Broadcast Integration benefits set out above in relation to any broadcast of a Live Event taking place in the Territory.
c. Any expenses related to Live Event Benefit activation shall be the sole responsibility of Agent or Sponsor, and Blizzard shall not have any liability for such expenses.
6. PR & SOCIAL MEDIA ASSETS
a. Blizzard PR & Agent will explore date and distribution of partnership announcement, if required which would include:
i) Media alert with key visuals
(a) Contenders + McDonalds Logo lock up (as set out at Schedule C hereto)
(b) McDonalds Australia Maccas play of the game graphic
ii) Mutually agreed-upon social posts from Blizzard’s social channels teasing out the partnership and driving excitement around Sponsor’s involvement (Agent to provide Sponsor’s sample copy and imagery) including:
(a) One (1) post per platform (Twitter, Facebook)
(b) Including links to @Maccas, @Blizzard_ANZ
(c) One (1) post from @owpathtopro on Twitter
a. “Presenting Sponsor Overwatch Contenders Australia” or, where character limitations exist, “Supported By”
i) 25% SOV of advertiser logo rotation;
ii) Contenders + McDonalds Logo lock up (as set out at Schedule C hereto)
b. Sponsor may refer to itself as “Presenting sponsor of Overwatch Contenders Australia” in materials that it creates in connection with the Sponsored Activity and Sponsored Benefits (which shall be subject to any relevant approvals by Blizzard as set out herein).
Legal Terms and Conditions
1. Marketing Materials.
(a) Pursuant to the terms of this Agreement, it is anticipated that each party will be creating certain of its own marketing and promotional materials in connection with the Sponsorship Benefits (“Marketing Materials”). All Marketing Materials shall be created at the sole cost and expense of the party creating such Marketing Materials unless otherwise explicitly specified to the contrary in this Agreement or as the parties may otherwise agree in writing. Unless otherwise expressly set forth herein, Agent shall be solely responsible for all costs associated with the production of its Marketing Materials or any other creative materials, custom media, or any other materials relating to the Sponsorship Benefits, including but not limited to those costs relating to the design, creation and timely delivery of internet advertisements, signage, print advertisements, broadcast advertisements and insertions, and all other collateral materials, and any costs associated with any third party intellectual property or other materials incorporated therein. Agent shall be solely responsible for complying with all reasonable deadlines established by Blizzard for submission of Marketing Materials. Sponsor’s failure to meet such deadlines shall constitute a waiver by Agent and Sponsor of its right to receive associated Sponsorship Benefits. Unless otherwise specifically stated herein, all creative elements of the Sponsorship Benefits which incorporate Blizzard Materials shall be subject to Blizzard’s prior approval.
(b) Agent acknowledges on its own behalf and that of the Sponsor that, unless otherwise expressly stated herein, the Sponsorship Benefits shall be for Sponsor’s corporate use only and shall not be offered to third parties for promotional purposes. In all cases where Blizzard grants Sponsor permission to use Sponsorship Benefits for promotional purposes, Sponsor shall be solely responsible for development of all necessary rules and documents relating to the promotion, compliance with all applicable laws and regulations including, without limitation, advertising self-regulatory codes and data protection legislation (“Applicable Laws”), and Agent shall procure that Sponsor shall create and secure signatures on affidavits of eligibility under all applicable rules and liability releases from all prize winners (and other participants, as appropriate). Such affidavits and releases shall include Blizzard as a released party and shall be in a form acceptable to Blizzard. Unless otherwise agreed to in writing by the parties, Sponsor, and not Blizzard, shall be considered the legal “sponsor” of any such promotions and this shall be made clear in the rules. Sponsor shall indemnify Blizzard in connection with any Sponsor promotion. For purposes of clarity, the provisions of this Section 1(b) shall also apply to any sweepstakes or other associated promotion held by Sponsor or Agent on Sponsor’s behalf.
(c) Except as otherwise expressly stated herein, any exclusivity granted herein shall not extend or apply to (i) advertising in association with League match broadcasts and other League-produced or League-licensed content, League or Team websites or mobile applications, League events, or other League-related platforms (for example, and without limitation, 30 second commercial units; pre-roll ad units; banner ad units; in-venue signage; etc.) and which advertising does not include the Blizzard Materials; (ii) sponsorship of esports or other competitive Game play and other related events that are not League events; (iii) sponsorship, promotional, or marketing initiatives for products not included in the Sponsorship Category from companies that also provide products or services within the Sponsorship Category; or (iv) sponsorship, promotional or marketing activities solely in connection with the Game
(d) Blizzard reserves the right to alter the specifications of advertising media described in the Sponsorship Benefits. Blizzard will notify Sponsor of any material alterations prior to their implementation and the parties will mutually agree to a “make good” for any decrease in the value of the Sponsorship Benefits caused by the alteration.
2. Intellectual Property Rights.
(a) Each party acknowledges and agrees that each party shall retain all right, title and interest in its respective trademarks, service marks, logos or other distinctive brand features and all goodwill associated therewith (“Marks”) and that it will not claim or represent that it owns any right, title or interest in or to any of the Marks of the other party. All use of a party’s Marks will inure to the benefit of said party.
(b) Unless otherwise expressly stated herein, neither party shall be granted rights to use the other party’s Marks for any purposes. Any such use of the Marks, once granted, shall be non-exclusive, royalty-free, non-transferable and subject to the other party’s prior written approval. Sponsor’s permitted uses of Marks owned by Blizzard or its affiliates must comply with the Overwatch League Style Guide, as that document may be amended from time to time.
(c) Each party shall provide to the other parties (the “Reviewing Party”) any Marketing Materials containing the Reviewing Party’s Marks for the Reviewing Party’s review and approval. The Reviewing Party shall have three (3) business days to approve any submitted Marketing Materials. Approvals shall not be unreasonably withheld or delayed. If the Reviewing Party has not approved the Marketing Materials within this timeframe they shall be deemed disapproved.
(d) Unless otherwise expressly stated herein, the rights granted by Blizzard do not include the right to use (i) the name, image or likeness of any individual or group of individuals, including without limitation any League players or coaches; or (ii) the Marks of any League team.
3. Representations, Warranties and Covenants.
(a) Agent Sponsor hereby represents, warrants and covenants on behalf of itself and Sponsor: (i) that Agent and Sponsor has all requisite corporate power and authority to execute, deliver and perform their obligations under this Agreement, (ii) that the execution, delivery and performance of this Agreement have been duly authorized by Agent and Sponsor, (iii) that Agent and Sponsor will comply with all Applicable Laws in connection with this Agreement and that Agent’s performance of its obligations hereunder (and its procurement of Sponsor’s performance) as well as Blizzard’s use of any materials provided by Agent or Sponsor to perform Blizzard’s obligations (including without limitation Blizzard’s inclusion of Sponsor branding and products in League broadcasts, it being understood that there is one global feed of the broadcast, and in-venue placements and social media posts) will not infringe or violate the rights of any third party or any Applicable Laws (without prejudice to any other rights and obligations under this Agreement, Agent shall promptly notify Blizzard if it or Sponsor believes that any inclusion of Sponsor branding, Sponsor Materials and products in Blizzard’s obligations may not be in compliance with Applicable Laws, and that any failure to provide any Sponsorship Benefit or removal of such branding in connection with compliance shall not be considered a breach of any term hereof by Blizzard and shall not result in any amounts being repaid to Agent or Sponsor or a reduction in any Sponsorship Fees payable); and (iv) Sponsor’s products and services to be promoted in connection with this agreement comply with all Applicable Laws. Agent further warrants and represents that it has, and shall continue to have, throughout the Term of this Agreement, an contract in place with the Sponsor which permits and enables it to procure the Sponsor’s compliance with the terms set out herein, and to make, on behalf of the Sponsor, the agreements and provide the representations, warranties, and grants, assignments, transfers or licenses of rights provided herein on behalf of the Sponsor, and that Sponsor is aware of the nature and terms of this Agreement and has agreed to provide any services required on the terms set out herein. In the event that Agent reasonably believes that it will lose such rights, it shall promptly notify Blizzard in writing. Agent hereby indemnifies Blizzard for any claims, damages, costs and expenses arising due to any breach of the obligations, warranties and representations set out herein on behalf of both Agent and Sponsor, or any failure of the Sponsor to complete any services required herein.
(b) Blizzard hereby represents, warrants and covenants: (i) that Blizzard has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, (ii) that the execution, delivery and performance of this Agreement have been duly authorized by Blizzard, and (iii) that Blizzard’s performance of its obligations hereunder as well as Sponsor’s use of any materials provided by Blizzard in compliance with the terms of this Agreement will not infringe or violate the rights of any third party, provided that the parties acknowledge and agree that it shall be Sponsor’s sole responsibility to determine whether the inclusion of Sponsor branding in League broadcasts and in-venue placements, social posts and other Blizzard obligations complies with Applicable Laws.
4. Indemnification, Limitation of Liability and Insurance.
(a) Each of Blizzard and (jointly and severally) Sponsor and Agent agrees to defend, indemnify and hold the other party, and, as applicable, its affiliates, subsidiaries, parent and related companies, officers, directors, members, managers, agents, and employees harmless from and against any and all costs, third party claims, settlements, judgments, liabilities, damages, losses, suits and expenses of any nature whatsoever, including reasonable attorneys’ fees and expenses (collectively, “Damages”), to the extent arising out of, based upon or in connection with any material breach by the indemnifying party of its obligations or responsibilities under this Agreement, including any of its representations, warranties, covenants and obligations hereunder.
(b) EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS ARISING UNDER THIS AGREEMENT, BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR BREACH OF ANY PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. TO THE EXTENT PERMITTED BY APPLICABLE LAW, Blizzard HEREBY DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED IN THIS AGREEMENT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL Blizzard BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE TOTAL CASH PAID OR PAYABLE BY SPONSOR HEREUNDER, WHICHEVER IS GREATER.
(c) Blizzard Insurance. Blizzard shall provide and maintain throughout the Term all of the following insurance coverages:
(i) Commercial general liability insurance with minimum coverage of One Million Dollars ($1,000,000) combined single limit for bodily injury and property damage, including contractual liability, products and completed operations liability, and advertisers’ liability.
(ii) Employer’s liability insurance with minimum coverage of One Million Dollars ($1,000,000). Blizzard shall comply with all applicable workers’ compensation and other laws that may accrue in favor of any person employed by Blizzard in all states where Blizzard performs activities related to the subject matter of this Agreement.
(iii) Automobile liability insurance on all owned, non-owned, and/or hired vehicles with minimum coverage of One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury and/or property damage, and physical damage. Unless otherwise specifically agreed in writing by Sponsor, (a) such coverage shall not only apply to vehicles owned and/or leased by Blizzard or its personnel who provide services for, or are present at, the Events or during any productions, but also the Vehicle provided or made available by Sponsor pursuant to this Agreement and (b) Blizzard’s automobile insurance shall be primary to any insurance that Sponsor or any of its affiliated, subsidiary or parent companies may have. Blizzard shall assume, irrespective of liability, no more than a One Thousand Dollar ($1,000.00) deductible for each comprehensive or collision loss.
(iv) Umbrella liability insurance with a minimum coverage of Four Million Dollars ($4,000,000).
(d) Sponsor’s Insurance. Agent shall procure that Sponsor shall provide and maintain throughout the Term all of the following insurance coverages with sufficient worldwide coverage:
(i) Commercial general liability insurance with minimum coverage of One Million Dollars ($1,000,000) combined single limit for bodily injury and property damage, including contractual liability, products and completed operations liability, and advertisers’ liability.
(ii) Employer’s liability insurance with minimum coverage of One Million Dollars ($1,000,000). Sponsor shall comply with all applicable workers’ compensation and other laws that may accrue in favor of any person employed by Sponsor in all states where Agent or Sponsor performs activities related to the subject matter of this Agreement.
(iii) Automobile liability insurance on all owned, non-owned, and/or hired vehicles with minimum coverage of One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury and/or property damage, and physical damage insurance for the actual cash value of each such vehicle. Sponsor shall assume, irrespective of liability, no more than a One Thousand Dollar ($1,000.00) deductible for each comprehensive or collision loss.
(iv) Umbrella liability insurance with a minimum coverage of Four Million Dollars ($4,000,000). The commercial liability policy required hereunder shall name Blizzard and its parent, subsidiary and affiliated companies as Additional Insureds and shall specify that the insurance carrier shall endeavor to provide Blizzard thirty (30) days’ written notice prior to any change, cancellation or reduction in such coverage.
5. Provision of Benefits; Termination.
(a) If Agent or Sponsor breaches any material provision of this Agreement and such breach is not cured within fifteen (15) business days following written notice to Agent thereof, Blizzard may suspend the Sponsorship Benefits described in this Agreement or any Schedule hereto until such time as the breach is cured. If Agent or Sponsor breaches any material provision of this Agreement (including non-payment of the Sponsorship Fee as specified in the Agreement that is not in dispute) and (i) such breach is not cured within the fifteen (15) business days following the cure period set forth above, or (ii) such breach is incapable of cure (for the avoidance of doubt, and without limitation, breach of confidentiality provisions shall be considered a breach incapable of cure), Blizzard may terminate this Agreement, effective immediately upon written notice. Following expiration of this Agreement or termination by Blizzard in accordance with this Section 5(a), Sponsor shall pay to Blizzard within seven (7) days of the date of termination, all unpaid Sponsorship Fees due and payable for the Term under this Agreement.
(b) If Blizzard is unable to provide a portion of the Sponsorship Benefits due to Applicable Laws, a change in the terms of or cancellation of an agreement with a third-party supplier, vendor, or media channel or causes outside Blizzard’s reasonable control, or if Blizzard inadvertently fails to provide any of the Sponsorship Benefits, Agent agrees, on its own behalf and that of the Sponsor that Blizzard shall be permitted to substitute reasonably equivalently valued marketing assets as a “make-good” in lieu of the applicable Sponsorship Benefits, which shall constitute Agent and Sponsor’s sole and exclusive remedy with respect to any such Sponsorship Benefits.
(c) If Blizzard breaches any material provision of this Agreement, and such breach is not cured within sixty (60) business days following written notice to Blizzard thereof, Agent may immediately terminate this Agreement on written notice.
(d) In the event of a termination or upon expiration of this Agreement, Blizzard shall not be obligated to remove Sponsor intellectual property, including any Sponsor Materials, from existing broadcast recorded footage. Blizzard shall be permitted to continue utilizing any Sponsor Material taken from any existing broadcast recorded footage for any and all purposes, including cut-downs, sizzle reels, recaps, or any editorial purposes in perpetuity.
6. Notices. Any notice, consent, or other communication required hereunder shall be in writing and shall be deemed given if personally delivered or transmitted by fax or e-mail, provided in either case that receipt is acknowledged or confirmed, or if mailed by U.S. registered or certified mail, or if sent by Federal Express or U.S. Express Mail. Notice to Blizzard shall be sent to 1 Blizzard Way, Irvine, CA 92618, Attention: Overwatch Contenders Legal Department. Notice to Sponsor shall be sent to the Sponsor’s address set forth above or as may be on file with Blizzard. In the event of notice of a claim under the indemnity provisions hereunder then if notice is delivered by fax or email it must also be confirmed by registered or certified mail.
7. Assignment. No party shall have the right to assign this Agreement or any of its rights or duties hereunder, without the prior written consent of all other parties; provided that each party shall have the right to assign this Agreement to the surviving party in a merger of that party into another entity, and that Blizzard may freely assign or novate this agreement to a subsidiary or affiliate in connection with any restructuring or reorganization of its business. Any approved assignee shall assume all of the assigning party’s rights and obligations.
8. Headings. The headings and capitalization herein are for convenience only and are not intended in any way to define or limit the meaning of any provision of this Agreement.
9. Survival. All provisions of this Agreement which by their context contemplate performance after the termination of this Agreement shall survive the termination of the Agreement.
10. Severability. If any term or provision (or subparts thereof) of this Agreement shall, to any extent, be invalid or unenforceable, the remaining provisions (or subparts thereof) of this Agreement shall not be affected thereby and shall be valid and be enforced to the fullest extent permitted by law.
11. Merger. This Agreement and any schedules and/or exhibits hereto constitute the entire understanding between the parties concerning the subject matter of this Agreement and may be modified only by written consent signed by an authorized representative of each party. This Agreement shall supersede all other prior communications between the parties, whether written or oral, relating to the subject matter of this Agreement, including any term sheet executed prior to the date hereof. No waiver of a breach of any term of this Agreement shall be deemed a waiver of any subsequent breach of that term or any other term or a general waiver.
12. Governing Law, Jurisdiction and Venue. This Agreement and all matters collateral hereto shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed solely in New York (without giving effect to any conflict of laws principles under New York law). The parties agree that the sole and exclusive jurisdiction of any action or suit in connection with this Agreement or any claim, dispute or controversy arising therefrom or in connection therewith will lie in State or Federal Court located in the County of Manhattan, State of New York. Each of the parties hereby consents and submits to said jurisdiction and consents to the venue thereof.
13. Costs and Fees. If any action is necessary to collect amounts due under this Agreement, the prevailing party shall be entitled to receive from the other party all costs and fees, including reasonable attorneys’ fees, and the prevailing legal interest rate on all debts from the date of default.
14. Independent Entities. Blizzard, Agent and Sponsor are and will remain independent entities, and nothing in this Agreement will create a relation of principal and agent, partners, joint venturers or employer and employee between Blizzard, Agent and Sponsor.
15. Alternative Dispute Resolution. Any and all disputes, claims and/or causes of action arising out of or relating to this Agreement (including without limitation, any alleged violation of this Agreement, any controversy relating to the interpretation or enforceability of this Section or the arbitrability of any dispute, or any claim that this Agreement or any part thereof is invalid, illegal or otherwise voidable or void) (each, a “Dispute”) shall be resolved in accordance with the procedures specified below in this Section 15, which shall be the sole and exclusive procedures for the resolution of any such Disputes:
(a) Negotiation. The parties shall attempt promptly and in good faith to resolve any Dispute by negotiation.
(b) Mediation. If any Dispute should arise between the parties which cannot be resolved through negotiation, the parties shall endeavor to settle the Dispute by mediation. Either party may request in writing that the other party mediate the Dispute; such notice shall set forth the subject of the Dispute and the relief requested (“Dispute Notice”). Unless the parties otherwise agree, the mediation shall be conducted in New York County, New York, by a mediator affiliated with and under the rules of the American Arbitration Association or the Judicial Arbitration and Mediation Services, Inc.
(c) Arbitration. If within sixty (60) days after the date of the Dispute Notice the Dispute is not resolved, either party may serve the other party with a written notice of binding arbitration. Unless the parties otherwise agree, the arbitration shall be conducted by and under the commercial arbitration rules of the same organization that conducted the mediation. The arbitration shall be conducted by a panel of three (3) arbitrators. The party initiating the arbitration shall designate its selected arbitrator in its notice of arbitration. The other party shall have ten (10) business days to designate its party-selected arbitrator. The arbitrators selected by the parties shall then agree upon a third arbitrator within fifteen (15) business days after the selection of the second arbitrator. If either party fails to appoint an arbitrator, or if the party-selected arbitrators cannot agree on the third arbitrator, then the dispute resolution service whose rules govern the arbitration shall appoint the arbitrator. The arbitration shall take place in New York County, New York, and shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., to the exclusion of state laws inconsistent therewith, and judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof.
(d) Provisional Remedies; Legal Action. Notwithstanding the provisions of this Section, a party may file a complaint limited to seeking provisional judicial relief pending the outcome of the mediation and/or arbitration provided by this Section 15. If any legal action or proceeding becomes necessary to seek provisional equitable relief, or to enforce the provisions of this Section or to enforce the arbitration award, such legal action or proceeding shall be brought exclusively either (a) in any state court of competent jurisdiction located in New York County, New York, or (b) in the United States District Court for the Southern District of New York, and the parties expressly consent and waive any objections to subject matter jurisdiction, personal jurisdiction and venue in such courts.
(e) Confidentiality. All negotiations and proceedings pursuant to this Section are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence and any additional confidentiality protections provided by Applicable Law.
16. Confidentiality. Each party acknowledges that confidential or proprietary information (whether designated as such or by its nature is deemed confidential or proprietary) may be disclosed to the other party during the course of this Agreement. Each party agrees that it will (and Agent agrees that it shall procure that Sponsor will) take reasonable steps, at least substantially equivalent to the steps it takes to protect its own confidential or proprietary information, during the term of this Agreement, and for a period of two years following expiration or termination of this Agreement, to prevent the duplication or disclosure of confidential or proprietary information of the other party, other than by or to its employees or agents who must have access to such confidential or proprietary information to perform such party’s obligations hereunder, who will each agree to comply with this Section.
17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same agreement.
18. Data Protection. To the extent Sponsor collects any information relating to an identified or identifiable natural person or household in relation to the Blizzard or any Sponsorship Benefit (“Sponsorship Data”), Sponsor shall be responsible for (a) obtaining any necessary consents or approvals in order to be able to provide such Sponsorship Data to the Blizzard for the Blizzard’s use as an independent controller and owner of all such data, including with respect to sharing the Sponsorship Data with the Blizzard’s affiliates, consistent with their applicable privacy policies, and (b) compliance with all applicable laws, rules and regulations, including, without limitation, as applicable, the General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act (“CCPA”).
19. Force Majeure. Notwithstanding anything to the contrary contained herein, neither party shall be liable for, and shall not be deemed to have breached this Agreement in connection with, any delay, interruption, cancellation (including cancellation of a portion of the Sponsorship Benefits) or non-performance of any obligation hereunder resulting directly or indirectly from a Force Majeure Event. “Force Majeure Event” means the occurrence of any of the following events that (a) renders conduct of either party’s obligations hereunder, or the conduct by Blizzard or Sponsor of such business to which the Sponsorship Benefits directly relate, impracticable or unsafe, (b) is beyond the reasonable control of such party, and (c) continues for a period of at least thirty (30) days, consecutively or in the aggregate: (i) an act of God (including earthquake), (ii) inevitable accident, (iii) fire, (iv) strike or other labor dispute, (v) war or threat of war, (vi) act of public enemy, (vii) act of terrorism or threats thereof, (viii) riot or civil commotion, (ix) national state of emergency, (x) enactment rule, order or act of any governmental authority, (xii) failure of technical facilities, (xiii) epidemic, pandemic (including a health epidemic), (xiv), interruption in, or substantial delay or failure of, technical facilities, or (xv) failure or substantial delay of necessary transportation services; provided, such event shall not be deemed a Force Majeure Event to the extent such party has caused such event(s) to occur or does not continue to use diligent, good faith efforts to avoid the effects of such event.
Agreed Lock Up