A. TOUR is the organization of professional tournament golfers that co-sponsors, sanctions and administers the series of professional golf tournaments known as the PGA TOUR.
B. TOUR operates a certain professional golf tournament on the PGA TOUR entitled the Hyundai Tournament of Champions (the “Tournament”).
C. TOUR is willing to consign certain tickets to the Tournament to eligible 501(c)(3) charities and allow such charities to sell and receive the net proceeds from consumer purchases of such tickets (the “Program”).
D. Charity desires to participate in the Program pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TOUR and Charity agree as follows:
1. TERM. The term of this Agreement (the “Term”) shall commence upon full signature of this Agreement by the parties and terminate thirty (30) days following conclusion of the Tournament in 2014, which is scheduled to be conducted January 2-6, 2014 at The Plantation Course – Kapalua Resort in Maui, Hawaii. Either party may terminate this Agreement upon fifteen (15) days prior written notice to the other party.
2. THE PROGRAM.
2.1 Ticket Sales. Upon signature of this Agreement by the parties, Charity may request from TOUR a specific number of Tournament tickets that are subject to the Program (“Tickets”) using a Ticket Consignment Order Form (the “Order Form”) provided by TOUR. Subject to availability and a maximum limit of one hundred (100) Tickets, TOUR will provide Charity with the requested number of Tickets. Upon receipt, Charity may sell such Tickets for the prices indicated on the face of the Ticket. Charity shall collect payment in full for each Ticket when completing the sale, with payment made payable directly to Charity. Charity will be solely responsible for issuing any proof of purchase receipts to consumers who purchase Tickets. TOUR shall set the prices for each Ticket, and in no event shall Charity sell any Ticket for any price other than the amount specified by TOUR; provided, however, Charity is solely responsible for determining whether to collect GET or other taxes on its sale of Tickets hereunder and the cost of any such taxes should be in addition to the Ticket price set by TOUR. In the event of a sell-out, TOUR shall promptly notify Charity, and Charity shall thereafter cease all further Ticket sales hereunder and promptly return any unsold Tickets to TOUR.
2.2 Ticket Terms. Charity acknowledges and agrees that TOUR shall determine the dates of availability and price of the Tickets, assign a specific level of access to the Tournament provided by the Tickets, and determine any and all policies applicable to Ticket sales. All Ticket sales are non-refundable and subject to availability and all rules and regulations established by TOUR governing access to the Tournament (see http://www.pgatour.com/company/ticketterms for terms and conditions). Charity further acknowledges that not all tickets and hospitality sales to the Tournament shall be subject to the Program. TOUR will designate the particular Tickets that are subject to the Program. Charity acknowledges TOUR’s right to the consumer information collected by Charity, if any, in connection with Ticket sales hereunder.
2.3 Reporting. Unless otherwise directed by TOUR in writing, on or before January 14, 2014, Charity shall report to TOUR the number and type of Tickets sold by Charity as of such date, even if there were no sales. Together with such report, Charity will remit payment in full to TOUR for Tickets sold by Charity. Charity acknowledges and agrees that TOUR makes no representation that Charity will be able to sell any particular number of Tickets or receive any particular level of contribution from TOUR as a result of this Agreement. Charity is solely responsible for making applicable disclosures to consumers as required by law in connection with Charity’s solicitation of Ticket sales for charitable purposes; provided, however, that in all communications with consumers regarding Charity’s sale of Tickets, Charity shall notify such consumers that the Ticket purchase is not tax deductible as a charitable contribution by the consumer.
2.4 Ticket Reorders. At any time prior to December 20, 2013, Charity may request additional Tickets from TOUR, and, subject to payment in full for Tickets previously provided to Charity by TOUR, Ticket availability and a maximum limit of one hundred (100) Tickets, TOUR will provide such additional Tickets to Charity using the procedure described in Section 2.1. TOUR will not provide additional Tickets to Charity beyond the maximum limit stated herein unless and until TOUR has received from Charity payment in full for, and/or return of, Tickets already delivered to Charity pursuant to an Order Form.
2.5 Return of Unsold Tickets. On or before January 14, 2014, Charity shall return to TOUR any unsold Tickets together with payment to TOUR for Tickets sold by Charity as of such date. Charity shall be responsible for payment in full for any unsold Tickets not returned to TOUR.
2.6 Donation to Charity by TOUR. Within sixty (60) days following conclusion of the Tournament, TOUR will contribute to Charity net revenues from Tickets sold by Charity pursuant to this Agreement. “Net revenues” as used herein means the purchase price of the Tickets sold by Charity and paid to TOUR less applicable taxes owed by TOUR, if any.
2.7 Reservation of Right to Restructure Program. Notwithstanding the foregoing, TOUR reserves the right to restructure the Program such that Tickets are sold to consumers online, rather than directly by the charities participating in the Program, with consumers specifying a unique code to indicate to which charity the consumer wants TOUR to contribute (or cause to be contributed) the net revenue from the Ticket purchase under the Program. If TOUR so restructures the Program, TOUR will cause the total contribution to participating charities under the Program to be distributed within sixty (60) days of conclusion of the Tournament. If Charity desires to continue participating in the Program following TOUR’s restructure as described in this Section 2.7, Charity will execute an Amendment to this Agreement provided by TOUR detailing the new procedures as restructured. Alternatively, TOUR may provide notice of termination of this Agreement as contemplated in Section 1.
3. MARKS. Subject to approval of the title sponsor of the Tournament (i.e., Hyundai), Charity shall be granted the right to use the name of the Tournament (i.e., Hyundai Tournament of Champions) together with the name of the Program (i.e., Golf for Maui Charities) solely in conjunction with its efforts to generate Ticket sales pursuant to this Agreement. Charity’s use of the Tournament and Program names shall be strictly limited to promotion of the availability and the sale of Tickets and shall at all times be subject to the prior written approval of TOUR in each instance. In all communications with consumers by Charity related to the Program, Charity shall ensure that consumers are notified that such Ticket sales are not tax deductible as a charitable contribution for the consumer. Charity shall not imply or infer an affiliation or association with TOUR, the Tournament or the Program other than as a charitable recipient of the Program at the Tournament. TOUR shall provide Charity with a limited amount of marketing and promotional material and content (the “Toolkit”) for Charity’s use in connection with the Program. Charity shall not use any other marketing or promotional material or content that utilizes the Tournament name, including on any website, without TOUR’s prior written approval in each instance. Neither shall Charity disassemble, parcel or separate the material within the Toolkit (e.g., copy/cut/repurpose logos or photos). Nothing herein gives Charity the right to use the Tournament logo other than as provided within the Toolkit. Upon request by TOUR upon termination or expiration of the Term, Charity shall return to TOUR and/or certify the destruction of the Toolkit.
4. REPRESENTATIONS AND WARRANTIES. Charity is and shall remain throughout the Term of this Agreement a United States 501(c)(3) entity, duly formed, validly existing and in good standing under the laws of the state in which it is organized and is qualified to do business in all jurisdictions in which the nature of its business or assets would so require. Charity, including the individual signing below on behalf of Charity, has full power and authority to enter into and perform this Agreement. The execution and delivery of this Agreement by Charity and the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement constitutes a legal, valid and binding agreement of Charity and is enforceable against Charity in accordance with its terms. Charity agrees that it and any employees, agents or contractors it may employ or utilize shall comply with all applicable laws, statutes, ordinances, rules and regulations of any governmental authority and with any rules or regulations promulgated by TOUR in connection with the Program.
5. INDEMNIFICATION. Charity covenants and agrees to indemnify and hold TOUR and its respective officers, directors, employees, affiliated entities, and sponsors (and their respective officers, directors and employees) (collectively, the “TOUR Indemnitees”) harmless from and against any and all losses, claims, damages, expenses, judgments, awards, petitions, demands or liabilities (including without limitation reasonable counsel fees whether incurred in preparation for trial, at trial, on appeal or in bankruptcy proceedings), joint or several, to which any of TOUR Indemnitees may become subject (collectively, “Claims”) arising out of or in connection with (a) Charity’s breach of its obligations under this Agreement, (b) the negligence or willful misconduct by Charity or its officers, directors, employees, contractors or agents in connection with the performance of Charity’s obligations under this Agreement, except to the extent that any such Claim arises from the negligence or willful misconduct of TOUR, and/or (c) any aspect of the development, implementation, promotion, and operation of a sweepstakes, raffle or contest related to this Agreement or the Program, including without limitation, any claim asserted by any governmental or regulatory entity related thereto. TOUR will notify Charity promptly upon receipt of notice of any such Claim, and Charity will assume responsibility for the defense thereof on behalf of the appropriate TOUR Indemnitee at Charity’s sole cost and expense. This indemnity shall survive termination or expiration of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of the date and year first above written