EXHIBIT 10.36
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Agreement
This Agreement ("Agreement") is by and between XxxXxxx.xxx, Inc., a Delaware
corporation ("BuyGolf"), with its principal place of business at 0000 X. Xxxxx
Xxxxxxx, Xxxxx X, Xxxxxx Xxxxx, Xxxxxxxxxx 00000 and Las Vegas Golf & Tennis,
Inc., a Nevada corporation ("LVG") with its principal place of business at 0000
Xxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000.
1. Purpose
The purpose of this Agreement is to provide the terms and conditions for
the purchase and resale by BuyGolf and LVG of various golf equipment,
accessories and related golf merchandise ("Product").
2. Terms of Sale
A. All Product sales will be subject to LVG's then-current [***] as
---
maintained in its inventory control and point of sale software system
("POS") at the time of purchase ("[***]").
---
B. BuyGolf agrees to name LVG as BuyGolf's Primary Distribution Source
("Primary Source"). As Primary Source, LVG will be BuyGolf's first contact
and, subject to Product availability, source for [***] BuyGolf's Product
---
needs.
C. LVG and BuyGolf will work toward the implementation of LVG's
Distribution Systems interface ("IMDSI") which provides real-time pricing
and availability.
3. Ordering
A. BuyGolf will compile, update and provide LVG with Product order
information. The Product order information will include the (i) Product
type(s) by LVG's department codes, (ii) unit quantity, (iii) LVG SKU
number, (iv) BuyGolf's resale price, and (v) correct shipping address.
BuyGolf personnel will identify for each Product order, the ship-to
destination as either BuyGolf, BuyGolf's customer, or to some other
specified third party. LVG will, subject to Product availability, use its
best efforts to fill and ship all Product orders placed by BuyGolf within
[***] of order receipt.
---
B. For government orders, BuyGolf will compile, update, and provide LVG
with the following Product order information: (1) Product type(s) by LVG's
department codes, (ii) unit quantity, (iii) end user name and zip code, and
(iv) government contract number. BuyGolf personnel will identify, for each
Product order, the ship-to destination as either BuyGolf, BuyGolf's
customer, or to some other specified third party. LVG will, subject to
Product availability, use its best efforts to fill and ship all Product
orders placed by BuyGolf with [***] of order receipt.
---
____________________________
[***] Confidential treatment has been requested for the bracketed portions.
---
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
C. LVG will accept orders, via facsimile, and via LVG and BuyGolf approved
electronic ordering methods only from those who identify themselves as
BuyGolf personnel and provide the LVG customer number prior to placing the
order. LVG will have no obligation to confirm the validity of any order
placed or the authority of the person placing an order in this manner.
BuyGolf will disclose its LVG customer number only to its personnel with a
need to know.
4. Pricing and Payment Terms
A. All Product prices will be at the [***] as shown in LVG's online POS
---
system as of the date of order, plus [***] to LVG.
---
B. As LVG's [***] change, LVG's price to BuyGolf shall be adjusted to
---
reflect such changes. BuyGolf shall have reasonable rights to audit
LVG's books and records to verify LVG's [***], on reasonable notice,
---
and at BuyGolf's sole expense.
C. If any manufacturer/publisher has agreed to make [***] to BuyGolf for
---
Products sold by LVG ("[***]") and upon LVG's approval, then LVG shall
---
pass through such [***] to BuyGolf via a credit memo. [***]
--- ---
opportunities are subject to LVG's available on-hand inventory. LVG
shall employ its best efforts to calculate such [***] for sales to
---
BuyGolf, and to pass through any such credits to BuyGolf within [***]
---
days of LVG's receipt of any such rebate or recognition of any such
discount.
D. LVG will invoice BuyGolf on the first and the sixteenth of each
calendar month and all Invoices will be due and payable net [***] from
---
invoice date.
5. Fees
LVG shall receive [***] per order, as and for the cost of its packaging
---
materials, which costs may be reviewed and adjusted by the parties hereto
on a quarterly basis.
6. Shipping
A. All orders will be shipped FOB origin, BuyGolf's carrier of choice,
with all ground freight charges for Product orders paid by [***]. In the
---
event an authorized BuyGolf representative requests a priority shipping
method, BuyGolf agrees to use an LVG authorized carrier and to [***].
---
B. LVG will ship orders directly to BuyGolf's customers upon BuyGolf's
request.
________________________________
[***] Confidential treatment has been requested for the bracketed portions. The
---
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
2
7. Returns
A. All returns must be accompanied by a valid BuyGolf return authorization
("RA") number. Each return must be packaged separately for each RA and
contain only Product specified on that RA.
B. Defective Products - In accordance with manufacturers warranties,
------------------
BuyGolf may return to LVG for replacement or credit, any defective Product.
C. Unauthorized Returns - Any Product not authorized for return by BuyGolf
--------------------
and not prominently marked with the RA number on the shipping carton shall
be designated as an Unauthorized Return ("UR"). LVG shall refuse delivery of
all UR.
D. Mislabeled Returns - Mislabeled Returns ("MR") shall include by way of
------------------
example only, Product returned that as new Product is not in a resalable
condition, or Product returned as defective that is not a fact defective.
Any MR received by LVG will be assigned a value by LVG in the exercise of
its discretion. That Value shall be promptly communicated to BuyGolf in
writing, together with the RA number accompanying any such MR Product.
BuyGolf shall have the sole responsibility of resolving any such dispute
with its customer. Within ninety days of delivery of the advice of value and
RA number to BuyGolf, BuyGolf shall advise LVG as to whether to reship the
MR Product at BuyGolf's expense or whether BuyGolf will accept the assigned
value as a credit on its account with LVG. Absent any instructions from
BuyGolf in such ninety (90) days, LVG shall apply a credit to BuyGolf's
account for the assigned value, which credit shall be deemed final and LVG
shall be free to dispose of the MR Product as LVG deems appropriate. LVG
will not be responsible for loss of or damage to MR Product pending said
ninety days.
E. In the event of return of Product and replacement at BuyGolf's request,
[***], and shall be entitled to any shipping costs paid by the manufacturer
---
of the Product, if any.
F. LVG reserves the right to change its return policies as stated herein
without notice upon notification from manufacturers or vendors of changes in
their returns policies.
8. Reconciliation
Both parties mutually agree to reconcile BuyGolf's account every [***]. In
---
order to allow appropriate credits to be applied, BuyGolf agrees to provide
appropriate documentation to LVG and wait [***] from disputed claim before
---
debiting LVG for any reason.
9. Marketing Funds
LVG will pass through, in the form of a credit memo, [***] provided by
---
vendors for BuyGolf provided BuyGolf provides LVG with the necessary
contract authorizing LVG
________________________________
[***] Confidential treatment has been requested for the bracketed portions.
---
The redacted portion has been omitted and filed separately with
Securities and Exchange Commission.
3
to deduct the funds from the vendor. BuyGolf will
provide marketing claims or Invoice to LVG within [***] of activity along
---
with a copy of the proof of performance if applicable.
10. Shares of Stock of BuyGolf
In consideration of the pricing provisions of this Agreement, together with
other good and valuable consideration, and upon commencement hereof,
BuyGolf shall deliver to LVG a common stock certificate for the number of
shares of BuyGolf's common stock equal to [***]% of BuyGolf's authorized
---
and issued shares of common stock outstanding on the effective date of this
Agreement. So long as LVG holds said shares of BuyGolf's common stock, LVG
shall be entitled to designate a person to serve as one member of BuyGolf's
board of directors and hereby designates Xxxxxx X. Xxxxxxx. BuyGolf shall
take all required action to amend its Articles of Incorporation and/or
Bylaws to provide adequate assurance that LVG will maintain the right to
designate the person to serve as such a member of BuyGolf's board of
directors. LVG's right to designate such a director shall terminate upon
the termination date of this Agreement, if any.
11. Terms and Termination
This Agreement will commence on the date of the last signature set forth
below and will continue for one (1) year. Either party may terminate this
Agreement without cause by giving sixty (60) days advance written notice to
the other party. LVG may terminate this Agreement immediately for cause
upon written notice, which notice will include a ten (10) day opportunity
to cure.
12. Confidentiality
Both parties agree that they will not disclose to third parties
Confidential Information, proprietary information and/or trade secrets, to
include BuyGolf customer information, of the other which is not in the
public domain, without the others' prior written permission.
A. Confidential Information will only be used by the parties in furtherance
of this business relationship.
B. LVG represents and warrants that it will not use BuyGolf's Confidential
Information to solicit or develop business directly with BuyGolf's
customers.
13. Notices
All notices and other communications relating to this Agreement or its
terms will be in writing and mailed via first class United States Postal
Service, certified or registered with return receipt requested or via
facsimile. All notices so mailed will be deemed received two (2) days
after postmark date and facsimiles will be deemed received upon
notification of successful transmission.
__________________________
[***] Confidential treatment has been requested for the bracketed portions. The
---
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
4
14. Entire Agreement
This Agreement (including any Exhibits and Addenda) constitutes the entire
Agreement between the parties regarding the resale of Product, and will
cancel terminate and supersede any and all previous agreements, proposals,
representations, or statements, whether oral or written. The terms of this
Agreement will supersede the terms of any invoice or purchase order issued
by either party. Any modifications of this Agreement must be in writing
and signed by an authorized representative of each party.
15. Governing Law
This Agreement will be deemed made in the State of California and will be
governed by and construed in accordance with California laws, excluding its
conflicts or choice of law rule or principles which might refer to the law
of another jurisdiction. The state and federal courts situated in Orange
County, California will have non-exclusive jurisdiction and venue over any
dispute or controversy which arises out of this Agreement.
16. Headings
This Agreement may be executed in any number of original counterparts, each
of which when executed and delivered will be deemed to be an original and
all of which taken together will constitute but one and the same
instrument. Headings in this Agreement are included for convenience of
reference only and will not constitute a part of this Agreement for any
other purpose.
This Agreement will become effective as of the last date of signature by the
authorized parties below.
XxxXxxx.xxx, Inc. Las Vegas Golf & Tennis, Inc.
By: /s/ Xxxxxxxx Xxxxx By: /s/ Xxx Xxxxxxx
-------------------- -----------------
Name: Xxxxxxxx Xxxxx Name: Xxx Xxxxxxx
------------------ ---------------
Title: President/CEO Title: President
----------------- --------------
Date: 5/3/99 Date: 5/3/99
------------------ ---------------
5
First Amended Agreement
This First Amended Agreement ("Agreement") is made by and between XxxXxxx.xxx,
Inc., a Delaware corporation ("BuyGolf"), with its principal place of business
at 0000 X. Xxxxx Xxxxxxx, Xxxxx X, Xxxxxx Xxxxx, Xxxxxxxxxx 00000 and Las Vegas
Golf & Tennis, Inc., a Nevada corporation ("LVG") with its principal place of
business at 0000 Xxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000.
1. Purpose
The purpose of this Agreement is to amend the terms and conditions of that
certain agreement by and between the parties hereto dated May 3, 1999 for
the purchase and resale by BuyGolf and LVG of various golf and tennis
equipment, accessories and related merchandise and all other merchandise
that LVG sells ("Product"). The foregoing notwithstanding, the term
"Product shall not include any proprietary Product bearing LVG's trade
names or marks, including by way of example only, Vision Golf(R).
2. Terms of Sale
A. All Product sales will be subject to LVG's then-current [***] as
---
maintained in its inventory control and point of sale software system
("POS") at the time of purchase ("[***]").
---
B. BuyGolf agrees to name LVG as BuyGolf's Primary Distribution Source
("Primary Source"). As Primary Source LVG will be BuyGolf's first contact,
subject to Product availability, for [***] BuyGolf's Product needs.
---
C. LVG and BuyGolf will work toward the implementation of LVG's
Distribution Systems interface ("IMDSI") which provides real-time pricing
and availability.
3. Ordering
A. BuyGolf will compile, update, and provide LVG with Product order
information. The Product order information will include the (i) Product
types(s) by LVG's department codes, (ii) unit quantity, (iii) LVG SKU
number, (iv) BuyGolf's resale price, and (v) correct shipping address.
BuyGolf personnel will identify for each Product order, the ship-to
destination as either BuyGolf, BuyGolf's customer, or to some other
specified third party. LVG will, subject to Product availability, use its
best efforts to fill and ship all Product orders placed by BuyGolf within
[***] of order receipt.
---
B. For government orders, BuyGolf will compile, update, and provide LVG
with the following Product order information: (i) Product type(s) by LVG's
department codes, (ii) unit quantity, (iii) end user name and zip code, and
(iv) government contract number. BuyGolf personnel will identify, for each
Product order, the ship-to destination as either
__________________________
[***] Confidential treatment has been requested for the bracketed portions.
---
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Comission.
1
BuyGolf, BuyGolf's customer, or to some other specified third party. LVG
will, subject to Product availability, use its best efforts to fill and
ship all Product orders placed by BuyGolf within [***] of order receipt.
C. LVG will accept orders, via facsimile, and via LVG and BuyGolf
approved electronic ordering methods only from those who identify
themselves as BuyGolf personnel and provide the LVG customer number prior
to placing the order. LVG will have no obligation to confirm the validity
of any order placed or the authority of the person placing an order in this
manner. BuyGolf will disclose its LVG customer number only to its personnel
with a need to know.
4. Pricing and Payment Terms
A. All Product prices will be at the [***] as shown in LVG's online POS
---
system as of the date of order, plus [***] to LVG.
---
B. As LVG's [***] change, LVG's price to BuyGolf shall be adjusted to
---
reflect such changes. BuyGolf shall have reasonable rights to audit LVG's
books and records to verify LVG's [***], on reasonable notice, and at
---
BuyGolf's sole expense.
C. If any manufacturer/publisher has agreed to make available [***] to
---
BuyGolf for Products sold by LVG ("[***]") and upon LVG's approval, then
---
LVG shall pass through such [***] to BuyGolf via a credit memo. [***]
--- ---
opportunities are subject to LVG's available on-hand inventory. LVG shall
employ its best efforts to calculate such [***] for sales to BuyGolf, and
---
to pass through any such credits to BuyGolf within [***] days of LVG's
---
receipt of any such rebate or recognition of any such discount.
D. LVG will Invoice BuyGolf on the first and the sixteenth of each calendar
month and all Invoices will be due and payable net [***] from the invoice
---
date.
E. Beginning April 1, 2000 all Product prices will be at the [***] as shown
---
in LVG's on line POS system as of the date of order, plus the following
percentage:
-----------------------------------------------------------------------
Annual Sales Percentage
------------- -----------
-----------------------------------------------------------------------
[***] [***]%
--- ---
-----------------------------------------------------------------------
[***] [***]%
--- ---
-----------------------------------------------------------------------
[***] [***]%
--- ---
-----------------------------------------------------------------------
5. Shipping
A. All orders will be shipped FOB origin, BuyGolf's carrier of choice, with
all ground freight charges for Product orders paid by [***]. In the event
---
an authorized BuyGolf representative requests a priority shipping method,
BuyGolf agrees to use an LVG authorized carrier and to [***].
---
________________________
[***] Confidential treatment has been requested for the bracketed portions.
---
The confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Comission.
2
B. LVG will ship orders directly to BuyGolf's customers upon BuyGolf's
request.
6. Returns
A. All returns must be accompanied by a valid BuyGolf return authorization
("RA") number. Each return must be packaged separately for each RA and
contain only Product specified on that RA,
B. Defective Products - In accordance with manufacturer warranties, BuyGolf
------------------
may return to LVG for replacement or credit, any defective Product.
C. Unauthorized Returns - Any Product not authorized for return by BuyGolf
--------------------
and not prominently marked with the RA number on the shipping carton shall
be designated as an Unauthorized Return ("UR"). LVG shall refuse delivery
of all UR.
D. Mislabeled Returns - Mislabeled Returns ("MR") shall include by way of
------------------
example only, Product returned that as new Product is not in a resalable
condition, or Product returned as defective that is not in fact defective.
Any MR received by LVG will be assigned a value by LVG in the exercise of
its discretion. That Value shall be promptly communicated to BuyGolf in
writing, together with the RA number accompanying any such MR Product.
BuyGolf shall have the sole responsibility of resolving any such dispute
with its customer. Within ninety days of delivery of the advice of value
and RA number to BuyGolf, BuyGolf shall advise LVG as to whether to reship
the MR Product at BuyGolf's expense or whether BuyGolf will accept the
assigned value as a credit on its account with LVG. Absent any instructions
from BuyGolf in such ninety (90) days, LVG shall apply a credit to
BuyGolf's account for the assigned value, which credit shall be deemed
final and LVG shall be free to dispose of the MR Product as LVG deems
appropriate.
E. In the event of return of Product and replacement at BuyGolf's request,
BuyGolf or its customer shall pay all costs of shipping, and shall be
entitled to any shipping costs paid by the manufacturer of the Product, if
any.
F. LVG reserves the right to change its return policies as stated herein
without notice upon notification from manufacturers or vendors of changes
in their returns polices,
7. Reconciliation
Both parties mutually agree to reconcile BuyGolf's account every [***]. In
---
order to allow appropriate credits to be applied, BuyGolf agrees to provide
appropriate documentation to LVG and wait [***] from disputed claim before
---
debiting LVG for any reason.
----------------------------------
[***] Confidential treatment has been requested for the bracketed portions.
---
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
3
8. Marketing Funds
LVG will pass through, in the form of a credit memo, [***] provided by
---
vendors for BuyGolf provided BuyGolf provides LVG with the necessary
contract authorizing LVG to deduct the funds from the vendor. BuyGolf will
provide marketing claims or invoice to LVG within [***] of activity along
---
with a copy of the proof of performance if applicable.
9. Shares of Stock of BuyGolf
In consideration of the pricing provisions of the original agreement,
together with other good and valuable consideration, and upon commencement
thereof, BuyGolf has delivered to LVG a common stock certificate for the
number of shares of BuyGolf's common stock equal to [***]% of BuyGolf's
---
authorized and issued shares of common stock outstanding on the effective
date of the original agreement. So long as LVG holds said shares of
BuyGolf's common stock, LVG shall be entitled to designate a person to
serve as one member of BuyGolf's board of directors and hereby designates
Xxxxxx X. Xxxxxxx. BuyGolf shall take all required action to amend its
Articles of Incorporation and/or By Laws to provide adequate assurance that
LVG will maintain the right to designate the person to serve as such a
member of BuyGolf's board of directors. LVG's right to designate such a
director shall terminate upon the termination date of the original
agreement or upon the sale of BuyGolf's business, or substantially all of
it's assets, by merger, stock sale or other means.
10. Terms and Termination
This First Amended Agreement shall commence April 1, 2000 and shall be
effective until March 31, 2003. All terms and conditions contained in the
original agreement dated May 3, 1999 shall continue to be effective up to
and including March 31, 2000. LVG may terminate this Agreement immediately
in the event of a default in payments, upon written notice to the other
party, which notice will include a ten (10) day opportunity to cure. This
Agreement shall automatically renew for successive two year periods unless
notice is given by a party to the other within ninety (90) days of the
expiration of the then current term.
11. Confidentiality
Both parties agree that they will not disclose to third parties
Confidential information, proprietary information and/or trade secrets, to
include BuyGolf customer information, of the other which is not in the
public domain, without the others' prior written permission.
A. Confidential Information will only be used by the parties in furtherance
of this business relationship.
-------------------------------
[***] Confidential treatment has been requested for the bracketed portions.
---
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
4
B. LVG represents and warrants that it will not use BuyGolf's Confidential
Information to solicit or develop business directly with BuyGolf's
customers.
12. Notices
All notices and other communications relating to this Agreement or its
terms will be in writing and mailed via first class United States Postal
Service, certified or registered with return receipt requested or via
facsimile. All notices so mailed will be deemed received two (2) days
after postmark date and facsimiles will be deemed received upon
notification of successful transmission.
13. Entire Agreement
This Agreement (including any Exhibits and Addenda) constitutes the entire
Agreement between the parties regarding the resale of Product, and upon the
effective date will cancel terminate and supersede any and all previous
agreements, proposals, representations, or statements, whether oral or
written. The terms of this Agreement will supersede the terms of any
invoice or purchase order issued by either party. Any modifications of
this Agreement must be in writing and signed by an authorized
representative of each party.
14. Governing Law
This Agreement will be deemed made in the State of California and will be
governed by and construed in accordance with California laws, excluding its
conflicts or choice of law rule or principles which might refer to the law
of another jurisdiction. The state and federal courts situated in Orange
County, California will have non-exclusive jurisdiction and venue over any
dispute or controversy, which arise out of this Agreement,
15. Headings
This Agreement may be executed in any number of original counterparts, each
of which when executed and delivered will be deemed to be an original and
all of which taken together will constitute but one and the same
instrument. Headings in this Agreement are included for convenience of
reference only and will not constitute a part of this Agreement for any
other purpose.
16. Assignment
This Agreement may not be assigned by either party without the prior
written consent of the other party, provided, however, either party may
assign this Agreement without such consent to (i) any person or entity that
acquires its business, or substantially all of its assets, by merger, stock
sale, or other means or, (ii) to a subsidiary or an affiliate which is at
least 50% owned and controlled by assignor. This Agreement will be binding
on and inure to the benefit of BuyGolf and LVG and their respective
permitted successors and permitted assigns.
5
17. Exclusivity and Non-compete
LVG expressly warrants and agrees, during the term of this agreement, not
to provide fulfillment services to any persons or entities conducting
business on the internet (or conducting e-commerce) except for BuyGolf and
its affiliates or assigns. Further, LVG expressly warrants and agrees that
it will not, during the term of this Agreement, become an internet
competitor to BuyGolf, meaning LVG will not, directly or indirectly, offer
any of its Products for sale via the internet. The foregoing
notwithstanding, LVG shall only be entitled to sell proprietary Product
bearing LVG's trade name or marks, including by way of example only, Vision
Golf(R), to an internet retail enterprise that is licensed to use the LVG
trade name or marks in an internet retail enterprise.
This Agreement will become effective as of April 1, 2000.
XxxXxxx.xxx, Inc. Las Vegas Golf & Tennis, Inc.
By: /s/ Xxxxxxxx Xxxxx By: /s/ Xxx Xxxxxxx
------------------------------ -------------------------
Name: Xxxxxxxx Xxxxx Name: Xxx Xxxxxxx
---------------------------- -----------------------
Title: President/CEO Title: President
--------------------------- ----------------------
Date: 9/11/99 Date: 9/10/99
---------------------------- -----------------------
6
