14-4019-Rl EXCLUSIVE CARBONATED SOFI' DRINKS OF WISCONSIN
ATHLETICS AND SPONSORSHIP AGREEMENT
This agreement (the "Agreement11) , dated July 12, 2013, is ma~e by Dr. Pepper Seven Up, Inc., a
Delaware corporation. on Behalf of itself and its Affiliates (defined below) ("Sponsor'') and the
aoard of Regents ofthe University of Wisconsin System on behalf of the Division oflntercollegiate
Athletics of the University of Wisconsin-Madison. a not-for-profit corporation created under the
laws of Wisconsin and located in Madison, Wisconsin (11 U'niversity11) . The parties are entering into
this agreement because the University wishes to grant to Sponsor, and Sponsor wishes to obtain, the
exclusive rights (i) to ofter Carbonated Soft Drink Beverages (Products) for sale or sampling at
Athletic Facilities and (ii) to market and associate Carbonated Soft Drink Beverages with the
Athletic Department and the Teams and to promote their consumption and sale generally at Athletic
Facilities. In consideration of the mutual promises contained here. the parties agree to the following
tenns regarding their exclusive Carbonated Soft Drink Beverage pouring rights and exclusive
sponsorship agreement.

1.

Term.

This Agreement takes effect as of July 12, 2013 (the 0 Effective Date11 ) and expires on June JO.
2018, unless (i) mutually extended under the tenns hereof or by written agreement of the parties or
(ii) sooner terminated as provided herein (the 11Term").

"2.

Definitions.

All terms used in this Agreement and not otherwise defined will have the meanings set forth on
Exhibit A. ·

3.

Beverage AvaHability Rights.

3.1 Except as otherwise specifically provided in this Agreement, University agrees that
Carbonated Soft Drink Beverages sold, distributed, sampled (that is, distributed at no cost),
advertised or promoted at Athletic Facilities where refreshments are sold, distributed, or

 sampled will be Products.
3.2 Except as otherwise specifically provided in this Agreement, University or its Concessionaire

will purchase or receive from Sponsor, and Sponsor will sell or otherwise provide to
University or its Concessionaire, all ofUniversity's requirements for'Carbonated Soft Drink
Beverages and carbon dioxide at the prices listed in Exhibit B. Carbonated Soft Drink
Beverages may be added to or deleted from the list in Exhibit B upon the mutual agreement
o~ the parties.

Any proposed price increases may not exceed 3% and are limited to once per

year.
3.3 Except as specifically provided in Section Sor in Sections 3.3.1-3.3.2, below, Carbonated
Soft Drink Beverages sold, dispensed, served, sampled, advertised or promoted anywhere,
anytime in Athletic Facilities will be Products, and Carbonated Soft Drink Beverages
advertised or promoted in connection with Teams or the Athletic Department will be
Products.
3.4 In addition to Products, University or its Concessionaire will purchase or receive from
Sponsor Snapple Tea and Snapple Lemonade for sale at Camp Randall Stadium.

3.S

If a material change to Products at the Athletic Facilities occurs (such as restricting the sale
ofregular or diet soft drinks, allowing beer or alcohol sales at the concession stands or other
new product offerings at athletic events, etc.) that may impact Sponsor beverage sales, the
parties may mutually agree on an equitable adjustment. This provision does not apply if beer
and alcohol are sold in addition to Sponsor Products when the Athletic Facilities host nonathletic events (such as concerts, etc.).

4.
4.1

Exclusive Sponsorship and Soft Drink Beverage Pouring Rights
University grants to Sponsor the exclusive rights to market and promote Carbonated Soft
Drink Beverages in co1U1ection with the Athletic Facilities, the Athletic Department and the
Teams, including Vending Rights set forth in Section 6.

4.2 University grants to Sponsor the exclusive rights to market and promote Carbonated Soft
Drink Beverages in connection with the Athletic Department, Facilities and Teams through
the use of University Marks as follows:
4.2.1. University will grant the Sponsor the right to reter to itself in any of its marketing
materials as a '.'sponsor" of the Athletics Department or as the "exc]~sive supplier'' of
2

 carbonated soft drinks for the Athletic Department or the "exclusive carbonated soft
drink brand" for the Athletic Department, Athletic Facilities and the Teams.

4.2.2. University will grant the Sponsor the exclusive right to market and promote
carbonated soft drinks in athletic facilities, where carbonated soft drinks are sold.
4.2.3. University will grant the Sponsor a r?yalty-free license to use University Marks in
marketing and promotional material. such as billboards, television and radio
advertisements, packaging and point of sale displays. Sponsor will have the right to
use the name or marks of a third-party customer in multiple promotions in each ye_ar
of the agreement. The third-party customer should be a current partner ofWisc<?nsin
Athletics. Before each agreement year, University will notify Sponsor of any retail
partners (such as a grocery, convenience/gas or QSR food chain) for the upcoming
season(s).
If Sponsor wishes to conduct a retailer specific promotion in a channel where the
University has a partner, Sponsor will first approach the retailer with the opportunity.
If the third-party partner is not a current partner of Wisconsin Athletics, Sponsor will
make efforts to help facilitate a partnership between the third-party customer .and
Wisconsin Athletics. If a partnership cannot be secured between the third-party
customer and Wisconsin Athletics, University will consider, on case-by-case basis,
approving the use of the University Marks and promotion with the third-party
customer, not to be unreasonably withheld. Any use of University Marks must be
approved, in advance by the University.
4.2.4. The right to enter into a license agreement with the University's qffice ofTrademark
Licensing for marketing and promotional activities utilizing University Marks, other
than those royalty-free activities listed above. Unless otherwise agreed by the parties,
the license will be royalty-bearing in accordance with industry standards. Prem.iwns
with University logos used herein must be purchased from OW-Madison licensees in
good standing.
4.2.5. Unless the subject of a written license agreement under Section 4.2.4. above, any use
by Sponsor ofUniversity Marks, including without limitation modification or use in
combination with other marks or logos, requires the approval of the University as

 provided in Section 4.7.
4.2.6.

The

University

will

follow

its

current

Sponsorship

(www.uc.wisc.edu/images/Sponsorship_Policy.pdt) whereas

Policy

the "exclusive"

designation extends only to the campus unit or activity with which the business,
product or service relates, and not to the University as a whole (e.g., "the "Exclusive
Carbonated Soft Drink' Brand for the Athletic Department" will be pennitted, but not
··the Exclusive Carbonated Soft Drink Brand of UW-Madison");
4.3 Sponsor may sample and survey individuals at events in the Athletic Facilities, subject to
University's prior approval as to location and time.

4.4 Materials promoting the Products at the point-of-sale in Athletic Facilities, which will
include but are not limited to translites and pictorials on dispensing equipment and Products,

will be clearly visible to the purchasing public and will be displayed in a manner and location
acceptable to Sponsor and University .
.4.5 Sponsor's Product trademarks will be displayed on each menu board in concession stands in
Athletic Facilities and can be displayed on vending machines at Athletic Facilities.
4.6 Except es specifically set forth fn this Agreement, University agrees that no pennancnt or
temporary advertising, signage, or trad~mark visibility for Competitive Products will be

displayed or pennitted anywhere in Athletic Facilities.
4.7 University will have the right to pre-approve (i) the concept for any promotional activity
undertaken hereWlder and (ii) any artwork or other items created by Sponsor for use in
promotional activities or other\vise in accordMce with the terms ofthis Agreement and that
incorporate any University Marks or otherwise reference the University. The Director ofthe
Office of Trademark Licensing or his or her designee may give·approval for activities, if
those activities are consistent with the University's Advertising Guidelines (pertinent
sections n~ached hereto as Exhibit F).

5.

Exceptions to Exclusive Rights.

5.1 Sponsor acknowledges that Competitive Products may be -provided and consumed and
advertising and signage for Competitive Products may be displayed, solely within the
confines of any Suite in Athletic Facilities in which the Suite holder is a competitive
.J

 beverage company, provided such advertising and signage ls only placed on the side walls of
such Suite(s).
5.2 Sponsor acknowledges that this Agreement does not preclude temporary sipge or
advertising of Competitive Products in connection with the broadcast or hosting of athletic
events pursuant to athletic conference or NCAA contracts, or sponsorship ofsuch broadcasts
or events by Competitive Products.
5.3 Sponsor. acknowledges that this Agreement does not preclude temporary signage and
advertising ofCompetitive Products in connection with agreements with touring musicals or
entertainment events where a Competitive Product is a sponsor of such touring events,
provided that any signage depicting the name(s) or logo(s) of Competitive Products in
Athletic Facilities in connection with such events may only be placed on the equipment
belonging to the entity conducting such events.
5.4 Nothing contained herein will prevent consumption in Athletic Facilities by students, faculty,
staff, or their guests of Competitive Products purchased outside the Athletic Facilities for
personal consumption and not for distribution.

5.5 Sponsor acknowledges that University is free to enter into sponsorship or licensing
agreements in which University's trademarks are used in conjunction with .the sale,
distribution or promotion of Competitive Products. so long as such Competitive Products are
not marketed and promoted in connection with the Athletic Department, the Athletic
Facilities and/or Teams, ~dare not sold, dispensed, served, sampled, advertised or promoted

in Athletic Facilities.
5.6 Competitive Products may be served at private functions held in Athletic Facilities, so long

as such products are specifically requested by the private party, are served in clear plastic
cups, and are consumed in non-public areas. University agrees to provide reasonable notice
to Sponsor of any such functions.

6.
6.1

Vending.
Sponsor will install and provide full service, including maintenance and stocking, to at least
twelve (12) vending machines at Athletic Facilities at no cost to the University. The location
of the vending machines in each Athletic Facility shall be mutually agreed to by University

s

 and Sponsor. The vending machines initially installed under this Agreement shall be of a
model approved by the University, whose approval shall not be unreasonably withheld.
University and Sponsor may agree to add or remove vending locations in the Athletic
Facilities.
6.2 University and Sponsor shall establish by mutual agreement the type and amount of Product
that will be stocked in each machine and revise such stocking pattern as necessary to retlect
customer preferen~es.

6.3 Sponsor shall use all reasonable efforts to ensure that each machine is kept well stocked with
Products.
6.4 Product trademarks may be prominently displayed on each vending machine at Athletic
Facilities.
6.5

University and Sponsor shall mutually determine the price for each Product stocked in the
vending machines, pricing should be similar to the University Vending Services Contract.
Sponsor will not compete with University or University contracted concession sales on days
when public events are held in the Athletic Facilities. University and Sponsor agree this may
include disabling the vending machines 2 hours before the public event and enabling the
equipment immediately after the

even~

which will be taken care of by University or its

Concessionaire.
6.6 All losses of vending equipment supplied by Sponsor as a part ofthis Agreement incurred by
Sponsor for whatever cause (other than the negligence or willful misconduct of University,
University's Concessionaire, and their employees or agents) shall be the sole responsibility of
Sponsor.
6.7 University and Sponsor shall mutually detennine a plan for Sponsor to issue refunds and
other customer service issues that result from malfunctioning vending machines.
6.8 Only Sp~nsor authorized Products may be in vending machines.
Considerations.

7.

7.1

In exchange for the Exclusive Carbonated Soft Drink Pouring and Sponsorship Rights
described herein, Sponsor agrees to pay University an aggregate of One Million Dollars
($1,000,000) for the entire 5 Year Term (the "Sponsorship Fees and Pouring Rights
Ii

 Royalties"). The Sponsorship Fees and Pouring Rights Royalties will be paid in five (5)
equal annual installments of Two Hundred Thousand Dollars ($200.000). The first
agreement year installment of Two Hundred Thousand ($200,000) will be paid within 30
days ofthe eKecution ofthis Agreement (provided that the University Wlderstands that it may
take longer due to the set up time and processing for the initial payment but not longer than
60 days). Subsequent installments will be ~ue 30 days prior to the start ofeach subsequent
agreement year. The University will provide Sponsor with an invoice for the Sponsorship
Fees and Pouring Rights Royalties at lea:st forty five (45) days prior to the due date of each
payment required hereunder.
7.2 Sponsor also agrees to support its sponsorship with the Athletic Department by committing
to purchase sponsorship opportunities offered by University or its designated muJti·media
rights holder.(currently, Badger Sports Properties). The minimum sponsorship commitment
will be $40,000 per Agreement Year. Such sponsorship oppqrtunities will be exclusive with
respect to the Carbonated Soft Drink category In Athletics Facilities.

Sponsorship

opportunities include, but are not limited to scoreboard signage, dasherboard signage1
courtside signage 1 radio and television advertising, game programs advertisements and game
day hospitality. Exhibit D lists those Badger Sports sponsorship items of initial interest to

·Sponsor, however, Sponsor acknowledges and agrees that the selection of sponsorship

opportunities will be valued at prevailing rates established for such opportunities. To the
extent the Sponsor selects opportunities that exceed $40,000, Sponsor shall par all additional
costs.

7.3 During the term of the agreement. Sponsor shall pay a 20 % commission on all Sponsor
operated vending machines located in Athletic FaciJities. Payment shall be remitted quarterly,
in the form of an ACH transaction, with payment due 30 days after the conclusion of each
quarter. The first agreement quarter shall be July 151, 2013 through September 301\ 2013.
Payments shall be accompanied by a detailed report ofsales per unit for the period. Sponsor
agrees that University shall have the right to audit such commissioned sales any time upon
request.

7

 8.
8.1

Flseal .Requirements.
Sponsor shall maintain complete and accurate records in accordance with accepted industry
accounting practices and keep in a safe place all such financial records and statements
pertaining to the operations under this Agreement for a perio.d of five years from the close of
each Calendar Years operation. All records maintained by the Sponsor pertaining to this
Agreement shall be open to inspection and/or audit by the State of Wisconsin and/or the
University at any reasonable time. The Sponsor shall advise the Agreement Administrator
and University's Internal Auditor of the Sponsorts schedule of records and operations at the
University. The University may request a fu11 report of Sponsor's audits of its operations at
the un·iversity.

9.
9.1

Equipment and Service.
Equipment.
9. l. l

During the Tenn, Sponsor will loan to University soft drink equipment for c;lispensing
and selling in the Athletic Facilities ("Equipment11) as described in Exhibit C.

9.1.2 University agrees (1) it will execute documents evidencing Sponsor's ownership of
their respective Equipment, (II) the Equipment may not be removed from the
University without the respective owner's written consent, (III) University will not
encumber the Equipment in any manner or permit any attaclunent thereto except as
authorized by Sponsor for their respective equipment
9.1.3 Sponsor will provide portable carbon dioxide tanks for use at the Athletic Facilities,
where necessary. Sponsor must refill, as needed, all C02 bulk tanks in Athletic
Facilities at no cost to the University, approximately $16,700 per year.
9.2 Service.
9.2.1 Sponsor will provide University with service for the Equipment owned by Sponsor,
without charge. Service will be provided during nonnal business hours and at a time
mutually agreed upon between the Sponsor and the Athletic Department. Sponsor
will replace defective or worn-out Equipment and Sponsor will loan additional
Equipment at any new locations where both parties mutually agree to dispense
Carbonated Soft Drinks.
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 9.2.2 Sponsor will provide two (2) on-location service technicians for the Equipment at all
home University t?otball games at Camp Randall Stadium, and will provide 24 hour
on call service for all Athletic Facilities. All service will be provided within 24 hours
from the time of request In emergencies, a service technician will be dispatched and
on site within 2 hours from the time of request.
9 .2.3 Sponsor will clean, flush and sanitize post-mix Equipment at least once every year or
as needed to comply with health and satety standards. Sponsor also will do complete
system checks to insure perfonnance and reliability on a schedule to be agreed upon
between Sponsor and the Athletic Department.
9.3. [Intentionally Omitted]
9.4 Removal and Loss.
9.4.1

Upon termination or expiration of this·Agreement and unless otherwise agreed to
between University and Sponsor, Sponsor shall remove all Equipment, vacate and
return the premises to the University in the same condition as at the time the Sponsor
entered the premises, reasonable use and wear excepted. Sponsor shall assume all
costs of removal and disposal, unless the Agreement is terminated by Sponsor

pursuant to Section 10.2, in which case such removal and disposal will be at the
University's expense, or Wlless the Agreement is terminated by Sponsor pursuant to

Section I0.4, in which case the University and Sponsor will equally share the cost of
removal and disposal. Equipment not removed from the University locations on
tenninatlon of this Agreement after 10 days written notice to the Sponsor may be
removed by University and treated as abandoned property.
9.4.2

All losses of Equipment supplied as a part of this Agreement incWTed by Sponsor for

whatever cause (other than the negligence or willful misconduct of University. it
agents or employees) are the sole responsibility of the Sponsor.
9.5 ·For coo1ers 1 mini-fridges, carts and hawker trays: No competitive Carbonated Soft Drink
beverages will be placed in the equipment. A reasonable allocation of space may be shared
for other products. Only Product will be in folllltain dispensers unless mutually agreed upon

by both Sponsor and University. No competitive Carbonated Soft Drink beverages will be
!J

 used in the bar guns. University may use other mi>cer product (orange juice, tonic, etc.) in bar
guns and will be responsible for any repairs due to other mixer product, if not provided by
Sponsor.

10.

Remedies for Loss of Rights.

10.1 In addition to any other legal or equitable remedy, University will have the right to tenninate
this Agreement upon thirty (30) days written notice to Sponsor at any time if:
10.1.1 Sponsor fails to make any payment due under this Agreement, and if such default
continues uncured for thirty (30) days after notice thereof, or
10.1.2 Sponsor breaches any material term or condition of this Agreement, and if such
breach continues uncured for thirty (30) days after notice thereof.
I Q.1.3 The Uahrefsit:y may teeniaare the Ceatrae~ at aft)' time, with.eat eat1se, hy pi:eYieliag
3Q eays r,wittee aetiee ta the Spenser. (University removes this clause from the
Agreement.
10.2 In addition to any other legal or equitable remedy, Sponsor wm have the right to terminate
this Agreement upon thirty (30) days written notice to University at any time if:
10.2.1 University breaches any material term or condition of this Agreement, and if such
breach continues uncured for thirty (30) days after notice thereof, or
10.2.2

Universi~'s

right to convey any of the Sponsorship Rights or Soft Drink Beverage

Pouring Rights contained in this Agreement expires or is revoked; or
10.2.3 Any material component of the Athletic Facilities is closed for a period ofmore than
one hundred twenty (120) days, whether or not such closure is due to a cause beyond
the reasonable control of University.
10.3 Up0n termination of this Agreement by Sponsor under Section 10.2 or by University under
Section 10.1, University will refund the unearned portion of the annual installments of
Sponsorship Fees and Pouring Rights Royalties paid under Sections 7 for the Exclusive Soft
Drink Pouring and Vending Rights.
10.4 If(i) any ofthe rights granted to Sponsor herein are materially restricted or limited during the
Term (including as a result of the closing of any material component of the Athletic
Facilities), or (ii) a Team that usually plays its home games in the Athletic Facilities fails to
10

 play all ofits scheduled home games in the Athletic Facilities for a period ofmore than thirty
(30) consecutive days during its scheduled season (whether or not such failure to play is due

to a cause beyond the reasonable con~ol of University, including a strike or other work
stoppage), then in addition to any other remedies available to Sponsor, Sponsor may elect, at
its option, to adjust the amount paid to University as the annual installment of the
Sponsorship and Pouring Rights Royalties for the then remaining portion of the Term (and
University will pay to Sponsor a pro rata refund of any prepaid amounts) to reflect the
diminution of the value of rights granted hereunder to Sponsor. In the event Sponsor elects
to exercise its right to such adjustment and refund, University may, at its option, within ten
( 10) days following receipt of notice of any adjustment, notify Sponsor of its disagreement
with the amount of the adjustment.

Th~ parties will then attempt in good faith to resolve the

disagreement over such adjustment. If the parties cannot, after good faith negotiations,
resolve the matter, Sponsor may elect to tenninate this Agreement or allow the Agreement to
continue under its original terms.
J0.5 University recognizes that Sponsor has paid valuable consideration to ensure an exclusive

associational relationship with the Athletic Facilities, the Athletic Department and the Teams
with respect to Carbonated Soft Drinks and that any dilution or diminution ofsuch exclusivity

seriously impairs Sponsor's valuable rights. Accordingly, University wiU take all reasbnable
efforts to prevent competitors of Sponsor from associating Competitive Products with the
Athletic Department, Athletic Faciliti~, or Teams. The University fwther agrees to enforce its
trademark rights against manufacturers, distributors or retailers of Competitive Products who
organize promotions or conduct advertising campaigns which are publicized via newspapers,
radio or television and which infringe on University Marks. In the event any such activity
occurs during the Term, each party will notify the other parties of such activity upon learning·
thereof.

11.

Representations, Warranties and Covenants.

11.1 University represents, warrants and covenants to Sponsor as follows:
11.1.1 University has full power and authority to enter into this Agreement a~d to grant and ·
convey to Sponsor the rights set forth herein.
11

 l l. l.2 All necessary approvals for the execution, delivery and perfonnance of this

Agreement by University have been obtained, and this Agreement has been duly
executed and delivered by University and constitutes the legal and binding obligation
of University enforceable in accordance with its terms.

11.1.3 University has the exclusive right to license the University Marks as required by this
Agreement.
11.1.4 University has not entered into, and during the Tenn of this Agreement, will not enter
into (a) WlY other agreements (including agreements with any Broadcaster or any
other sponsors of the Athletic Facilities and/or any Team) which would prevent it
from fully complying with the provisions of this Agreement or (b) any agreement
granting Carbonated Soft Drink availability or merchandising or promotional or
advertising rights that are inconsistent with the rights granted to Sponsor pursuant to
this Agreement, including any agreements with concessionaires or third party food
service operators, and/or other entities which sell or distribute Carbonated Soft Drink
Beverages (including agreements with Broadcasters or other sponsors of the Athletic
Department and/or any Team).
11.2 Sponsor hereby represents, warrants and covenants, solely as to itself, as follows:
11.2.1 Sponsor has full power and authority to en1er into and perfonn this Agreement
11.2.2 All necessary approvals for the execution, delivery and performance of this
Agreement by Sponsor have been obtained, and this Agreement has been duly
executed and delivered by Sponsor and constitutes the legal and binding obligation of
Sponsor enforceable in accordance with its terms.
11.2.3 Sponsor has not entered into, and during the Term of this Agreement will not enter
into, any other agreements which would prevent it from fully complying with the
provisions of this Agreement.

12.

Construction of this Agreement.

12.1 This Agreement will be governed by and construed in accordance with tbe laws of the State
of Wisconsin without regard to principles of conflicts of law.
12.2 The Sponsor shall at all times comply with and observe all federal and local laws, ordinances
12

 and regulations in effect during the period of this Agreement which affect the work or its
conduct, including all applicable safety regulations.
12.3 The captions used in this Agreement are for convenience only and will not affect in any way
the meaning or interpretation of the provisions set forth herein.
12.4 This Agreement, including the Exhibits which are an integral part of this Agreement and are
expressly incorporated herein by this reference, the Original Invitation to Submit Plans (ISP)
Number 14-4019-R1, including all appendices/amendments, Sponsor's response to ISP and
Official Purchase Order (when applicable) will constitute the final, complete and exclusive .
written expression of the intentions of the parties hereto with respect to the subject matter
hereof and will supersede all previous communications, representations, agreements,
promises or statements, either oral or written, by or between any party with respect thereto.
This Agreement, and each of its terms and conditions, maybe amended, modified, or waived
only in writing signed by each of the parties hereto. Any such modifications. waivers, or
amendments will not require additional consideration to be eff~ctive.

13.

Miscellaneous.

13.1 Indemnification rughts.

13.1.1 University Indemnification Obligations.

The University agrees to hold harmless

Sponsor, its officers, agents and employees from any and all liability, including
claims, demands, losses, costs, damages, and expenses of every kind and description
(including death), or damages to·persons or property arising out of or in connection
with or occuning during the course of this Agreement where such liability is founded
. upon or grows out of the acts or omissions ofany of the officers, employees or agents
of the University ·of Wisconsin System while acting within the scope of their
employment where protection is afforded by ss. 893.82 and 895.46(1), Wis. Stats.
13.1.2 Sponsor Indemnification Obligations. Sponsor shall defend, indemnify, and hold
University harmless from and against all claims, suits, liabilities, costs, and expenses
incurred by either of them. including reasonable attorney's c·osts and fees related to (i)
Sponsor's material breach of this Agreement, and (ii) for injury to, including death of,
persons (whether they be third persons or employees of any of the parties hereto) or
13

 any loss of or damage to property in any manner arising from the negligence of
Sponsor, its employees, and agents in the course of their duties to Sponsor, and (iii)

for claims arising from Products purchased from Sponsor..
13.1.3 Exce.12tion. No party's obligations under this Section 13.1 shall apply to any loss or
damage to the extent caused by the acts, omissions or negligence of the party seeking
to be indemnified.
13.1.4 Indemnification Procedures. Whenever any party (the "Indemnified Party") receives
notice of any potential claim which may be subject to this section, such party shalJ
promptly notify the other party obligated to indemnify or hold hannless (the
"Indemnifying Party"). The Indemnifying Party shall have the obligation to assume
the defense of such claim by counsel designated by it and the Indemnified Party,
provided that the Indemnifying Party shall not settle or compromise any such claim,
or consent to the entry of any judgment, without the written consent of
Indemnified Party. which consent shall not be unreasonably withheld.

~he

The

Indemnified Party, its affiliates. employees and representatives, shall fully cooperate
with and timely assist the Indemnifying Party with the defense of such claim. If the
Indemnifying Party fails to assume the defense of such claim as soon as reasonably
possible, in any event prior to the earlier of twenty (20) days after receipt of notice of
the claim or five (5) days before the date an answer to a complaint or similar
i~itiation of legal proceeding shall be due, the Indemnified Party shall have the right

to undertake, at the Indemnifying Party's expense, the compromise or settlement of
any such claim on behalf of and at the risk and expense of the Indemnifying Party.
13 .2 Insurance.
13.2.l Sponsor is required to maintain Worker•s Co~pensation insurance as required by
Wisconsin Statute for all employees engaged in the service, Commercial General
Liability (COL), and Automobile Liability when applicable. M'utimum coverages for
COL are: Each Occurrence/General Aggregate-$1,000,000. Automobile Liability
minimum is: Combined Single Limit - $1,000,000.

Liquor Liability (when

applicable) is: $1,000,000. Upon request by the University, Sponsor is required to
provide a Certificate.of Insurance with a minimum sixty (60) day cancellation notice,

 from an insurance company licensed to do business in the State of Wisconsin, with a
minimum AM Best rating ofB+, and signed by an authorized agent.
13.2.2 Sponsor shall add the Board of Regents of the University of Wisconsin System, its

officers, employees and agents as an additional insured under the commercial general
and automobile liability policies.
13.3 Agreement Administration.

13.3.l The Agreement Administrator for the University is:
David Brinkmeier
Purchasing Services
21 N. Park St.

Madison, WI 537l5
PHONE: (608) 262-1323 FAX: (608) 262-4467
EMAlL: dbrinkmeier@bussvc.wisc.edu

13.3.2 The Agreement Administrator for the University is authorized to make any agreement
modifications under this Agreement on behalf of the University.
13.3.3 Day-to-day operations will be handled by the Athletic Deportment Administrator.
The Athletic Department ~dministrator is:
Randy Marnocha
Associate Athletic Director for Business Operations
1440 Monroe St.
Madison, WI 53711
PHONE: (608) 262-5118 FAX: (608) 265-3036
EMAIL: rdm@athletics.wisc.edu

13.3.1 The Athletic Department Administrator is authorized to give approvals required
under this Agreement and to resolve all disputes under this Agreement that do not
require agreement amendments.
13.3.5 Agreement Administrator for Sponsor is:
John Weidner

Cold Drink Manager
6493 Blanchars Crossing
IS

 Windsor, WI 53598
PHONE: 608-846-1774 FAX: 608-846-1735
john.weidner@dpsg.com
13.3.6 The Agreement Administrator for the Sponsor is authorized to give the approvals and
negotiate changes required under th.is Agreement on behalf of the Sponsor.
13.3.7 Any party may change Administrator'by written notice to the other party.
13.4 Nondiscrimination and affinnative action. Failure to comply with the conditions of this
clause may result in the Sponsor becoming declared an "ineligible" contractor, tennination of
the Agreement or withholding of payment.
13.4.1 In connection with the perfonnance of work under this Agreement. the Sponsor
agrees not to discriminate against any employee or applicant for employment because
of age, race, religion, color, handicap, sex, physical condition, developmental
disability as defined in s.51.0 I(5), Wis. Stats., seiwal orientation or national origin.
This provision shall include, but not be limited to, the following: employment,
upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or
.termination, rates of pay or other forms of compensation; and selection of training,
including apprenticeship. Except with respect to sexual orientation, the Sponsor
further agrees to take affirmative action to ensure equal employment opportunities.
13.4.2 The Sponsor agrees to post in conspicuous places, available for employees and
applicants for employment, a notice to be provided by the contracting state agency
tbat sets forth the provisions of the State of Wisconsin nondiscrimination clause.
13.5 If a public official as defined in Section 19.42 Wisconsin Statutes, or an orgartization in

which a State public official holds at least 10% interest, is a party to this Agreement, this
Agreement is voidable by the University unless appropriate written disclosure is made to the
State of Wisconsin Ethics Board, 125 South Webster Street, Madison, W153703.
13.6 Any notice or other communication hereunder will be in writing, will be sent via us mail,
overnight courier, email or confinned facsimile transmission and will be deemed given (i) if
mailed, when deposited, postage prepaid, in the United States mail, (ii) ifsent by overnight
courier, one business day after delivery to such courier, (iii) if sent by email, when
transmitted and (iv) facsimile, when transmitted. Any notice or other communication will be
16

 addressed to Agreement Administrator above.
13.7 Ifany provision of this Agreement shall be, or shall be adjudged to be, unlawful or contrary
to public policy, then that provision shall be deemed to be null and separable from the

remaining provisions, and snail in no way affect the validity of this Agreement, except that
each party shall be entitled to its remedies, including tennination.
13.8 A waiver by either party of any tenns or conditions, provisions, or covenants of t~s
Agreement in any instance shall not be deemed or construed to be a waiver of any such tenn,
condition, provision, or covenant for the future, or of any subsequent breach of same. All
remedies, rights, undertakings, obligations, and agreements contained in this Agreement shall
be cumulative and shall not be in limitation of any other right, remedy, undertaking, .
obligation, or agreement of either party.
13.9 This Agreement or any part hereofwill not be assigned or otherwise transferred by any party
without the prior written consent of the other parties.
13.10 The parties are acting herein as independent contractors and independent employers.
Nothing herein contained will create or be construed as creating a partnership, joint venture
or agency relationship between the parties and no party will have the authority to bind the
other in any respect.
13 .11 No party will obtain, by this Agreement, any right, title, or interest in the trademarks of
the other parties, nor, except as provided herein, will this Agreement give any party the
right to use, refer to, or incorporate in marketing or other materials the name, logos,
trademarks or copyrights of the other parties.

17

 14.
14.l

Mutual cooperation.
This Agreement is entered into with a spirit of mutual cooperation. and the parties agree
to seek amicable solutions to any disagreements arising hereunder.

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed.

DR. PEPPER SEVEN UP INC.

BOARD OF REGENTS OF THE

UNIVERSITY OF WISCONSIN
SYSTEM

)JjlldL~

By:~

Br / '

Mike Hardiman

Title: {Jr)(),/(}

Title:

Director, Purchasing Services

Date: "j() •'f. / {3

Date:

I (J

lR

-

I0 -

z. C> I3

 EXHIBIT A
GLOSSARY OF DEFINED TERMS
As used in this Agreement, the following tenns, whether used in the singular or plural, shall have the
following meanings:
11

Academlc Year" means the academic year established by the University and consisting of a fall and

spring semester.
'

Affdlate11 means, as to any entity, any other entity whlch is controlled by, controls, or is under

1

common control with such entity. The tenn "control" (including the tenns "controlled," 11controlled
by" and "under common control with") will mean the possession, direct or indirect, of the power to
direct or cause the directio~ of the management and policies of an entity.
"Athletic

Departmc~t''

means the Division of Intercollegiate Athletics of the University of

Wisconsin-Madison.
"Athletic Facilities" me~s any facility owned or operated by the University and under the

supervision and control of the Athletic Department at any time during the Tenn of the Agreement
including the Kohl Center, Camp Randall, Field House, Goodman Diamond, McClimon
Track/Soccer Complex, LaBahn Arena and University Ridge Golf Course.
"Broadcaster'' means any entity which for any business purpose publishes, prints, syndicates,
televises or broadcasts any photograph, film, videotape or other recording or rendering of the
Athletic Department (or any portion thereof) and/or of any event held at Athletic Facilities including
any Team games under contract between the Athletic Department, the Big I0 Conference, the
WCHA, the NCAA or WIAA and the Broadcaster.
"Calendar Year" means a year commencing on January 1 and ending on December 31.
"Carbonated Soft Drink Beverages" means (i) all nonalcoholic carbonated soft drinks and (ii) aJI.

beverage bases from which these can be prepared.
"Competitive Products" means all carbonated soft drink beverages other than Products.

"Exclusive Carbonated Soft Drink Pouring Rights" means the exclusive right to designate the
brand of Carbonated Soft Drink Beverages to be poured, served, vended, sold, dispensed or
otherwise made available by the Athletic Department or under concession and vending contracts held
by the Athletic Department or its designated representative at Athletic Facilities.

"Includes" means inclucling, without limitation.
.(9

 11

Product511 carbonated soft drinks are defined as soft drinks (soda) that typically contains water, a

sweetener, 11 flavoring agent and carbonation. The sweetener may be sugar, high-fructose com syrup
and/or sugar substitutes. Carbonated soft drinks may also contain caffeine, colorings, preservatives
and other ingredients. Widely sold carbonated soft drink tlavors are cola, cherry, lemon-lime, root
beer, orange, grape, ginger ale, and citrus. The Carbonated Soft Drinks category will not include any
other consumable liquids, such as coffee, tea, alcohol, spirits, beer, wine, milk, water, flavored water,
sparkling water, enhanced water, hot chocolate, isotonic drinks, sports drinks, energy drinks, shots,
juices, juice drinks, juice blends, sparkling juices, lemonades or alternative drinks.
''Team" or "Team(s)" means all intercollegiate athletic teams of the Uni\'.ersity.

"University" means the Board of Regents of the University of Wisconsin System on behalf of the
University of Wisconsin-Madison and the Athletic Department.
"University Marks" means the University's name, each Team's name, unifonns, and emblems, and
all trade names, trademarks, service marks, designs, logos, mascots, characters, identifications,
symbols and other proprietary designs that are owned or controlled by University at any time during
the Term and used in connection with Athletics. ''University Marks'' does not include certain private

.

.

label marks developed by the University Book Store (..Badger Wear," "Baby Badger," and
"Wisconsin Collections"), exclusively for items sold at the University Bookstore. University agrees

that the excluded Marks shall not be licensed or made available to any manufacturer or distributor of
Competitive Products. Exhibit E lists certain University Marks that are currently regularly licensed
by University.

 EXHIBITB
PRODUCT PRICING

Pricing per most cWTent price list on file at UW-Madison Purchasing.

2l

 EXHIBil~ C

CONCESSIONS AND CATERING EQUIPMENT

Fountain
Dispenser
Camp RandaU ·Concessions

70

camp Randall- Oitering

5

Kohl Center - Concessions

36

Kohl Center-catering

2

Reid House

3

L.aBahn Arena

4

Bar
Dispensing
Unit

12
1

1

University Ridge Golf Course

2

Other-Concessions

Door
Cooler

Under
Counter
Cooler

SI.lite Mini
Refrigerators

Tankers

Bevetaee
Carts

Bev. Carts
-Lighted
Canopy

Hawker
TBVS

70

12

12

325

Rolnng

Texas

Rolling Small Tankers

34

2

4

12

1

16

4

12

2

1

2

1

0

1

1

l

0

1

1

2

2

6

4

2

5

Other-Catering

Total

Single

2

§•
1

2

McClimon Track

Goodman Diamond

Double
Door
Cooler

4

5

2

Fountain
Dispenser

Bar
Dispensing
Unit

Ul

15

Double

Single

Door

Door

Cooler

Cooler

Under
Counter
Cooler

SS

49

2

SulteMlnl
Refrigerators

6S.

Bev. Carts

Rolling

Texas

Romng Small Tankers

Tankers

as

4

Beverage

-Lighted

cans

canopy

Hawker
Trays

12

20

325

•Athletics purchased 36 prcmiwn refrigerators from DPSG and the vaJue of the standard refrigerators offered by DPSG was deducted from the pW'cllase price.

22

 EXHIBITD
SPONSOR'S INITIAL BADGER SPORTS SPONSORSHIP INTERESTS

Video Board Tri~Logo signage at Camp Randall
Digital Tunnel Signage at Kohl Center

 EXHIBITE
UNIVERSITY MARKS

The University of Wisconsin Athletics Graphic Identity Manual is incorporated into this Agreement.
http://www. licensing. wisc.edu/pdts/uwAthlelicslOmqnual.pdf

 EXHIBITE
UNIVERSITY OF WISCONSIN-MADISON TRADEMARKS

The University asserts ownership and all right1 title, and interest in and to its indicjat which includes
trademarks, service marks, mascots, slogans and any other indicia that is associated with or refors to
the University.
The Board of Regents of the University of Wisconsin System owns and supervises use of University
indicia. Eicamples of University indicia include any graphic representation relating to the following:
•University of Wisconsin®
•UW™
•Wisconsin™
•University of Wisconsin MadisonTM
•University of Wisconsin Badgers™
•UW-Madison®
•Badger™
•Badgers™
•Wisconsin Badgers®
•Bucky Badger™
•Bucky™

•W™
•The Motion W logo (requires ®)
•Bucky Badger logo (requires®)
•Football helmet logo (requires™)
•Crest W logo (requires®)
•Numen Lumen seal (requires™)
•Camp Randall Stadium™
•Kohl CenterTM
•Fifth Quarter™
•WiscoTM
The director of trademark licensing will be the clearing entity for all of the above-mentioned indicia.

25

 EXHIBITF

UW-MADISON ADVERTISING/SPONSORSHIP POLICIES
The below policies are incorporated into this Agreement:
http://www.universityrelations.wisc.edu/policies/advertising.phQ
htto:Uwww. unjversj tyrelations. wisc.edu/pol icies/sponsorshjp.php