§ 5.28C[D]   Form Agreement
AUTO RACING SPONSORSHIP AGREEMENT
THIS AGREEMENT is entered into as of this [date] by and between [name of Driver/Racing Team] (hereinafter “Owner”), a [State] corporation, with a main place of business at [address of Owner] and [name of Brand Owner] (hereinafter “Brand Owner”), with a principal office at [address of Brand Owner]. Owner and Brand Owner shall be collectively referred to as the “Parties.”
WHEREAS, Owner is engaged in the business of drag racing and utilizes the services of drivers, pit crew, members, mechanics, administrators, and others (the “Team Members”) for the assembling, maintenance, and racing of the [name of Car] (“Car”) race vehicles in the [name of Racing Association] (“Association”) national events and for the operation and maintenance of transport and other support vehicles (“Support Vehicles”); and
WHEREAS, Owner and Brand Owner desire to enter into an agreement under which Brand Owner will agree to provide financial sponsorship for the Car race vehicles owned by Owner and a race team affiliated with Owner entered in the year [years] Association national events; and
WHEREAS, Brand Owner desires to enter into this Agreement in reliance of Owner representing that it will enter the Car race vehicles owned by Owner and a race team affiliated with Owner in all National Association events (the “Events”) per year in the year [years]; and
WHEREAS, Brand Owner desires to enter into this Agreement in reliance on Owner and Driver using their best efforts to qualify for and race in all of the Races; and
WHEREAS, Owner represents and warrants that it has not previously granted the promotional and other rights granted herein for the years [years] and that such rights granted to Brand Owner will not conflict with any rights granted to Owner's Sponsors (as defined below).
NOW, THEREFORE, in consideration of the mutual covenants contained herein and intending to be legally bound hereby, the Parties agree as follows:
1. DEFINITIONS
The following terms shall have the specified meanings for the purposes of this Agreement:
(a) “Racing Event” or “Race” or “Races” shall mean all events included within the year [years] schedule of National events sponsored and sanctioned by Association, a [year] schedule is annexed hereto as Exhibit A. Each calendar year of [year], [year], and [year] shall be referred to as the “Year.”
(b) “Race Team” shall include the Cars owned by Owner and to be entered in the Races, the Team Members, and all other persons retained or hired by Owner to provide services related to participation in the Races.
(c) “Race Car” shall mean a Car drag race vehicle designated as the “[name of Car],” owned and operated by Owner and entered in the Races.
(d) “Driver” shall mean [name of Driver] (“Driver”). In the event Driver should be unable to serve as driver during the term of this Agreement due to injury or illness, retirement of Driver as the driver of the Race Cars, or circumstances beyond the control of Driver, Owner shall retain a qualified substitute driver, subject to Brand Owner's approval (of which approval shall not be unreasonably withheld), to complete the Events and to provide promotional services and personal appearances, along with Driver, over the term of this Agreement.
(e) “Sanctioning Body” shall mean the Association. Owner represents and warrants that the Races in which it participates will be conducted in accordance with the rules of the Association. Owner further represents and warrants that Owner, Race Team, and Driver participating in the Events will be members in good standing of or sanctioned by or otherwise eligible to participate in the Events by the Association.
2. SPONSORSHIP
Owner hereby grants Brand Owner an associate sponsorship and promotional rights for the Driver, Race Team, Race Cars, and Support Vehicles, all as more fully provided in this Agreement. Brand Owner acknowledges that [name of other Brand/Sponsor] is the primary sponsor of the Car and Race Team and that Brand Owner as an associate sponsor has been approved by the primary sponsor. [Name of Main Sponsor] (“Main Sponsor”) and [name of Other Third-Party Sponsor] shall be collectively referred to as the “Sponsors.”
3. SPONSORSHIP RIGHTS
Owner shall have the following obligations and provide the following rights to Brand Owner during the Term of this Agreement:
(a) Owner and Driver shall each use their best efforts to qualify for and race in all of the Races.
(b) Owner shall own and make available the Race Cars to compete in the Racing Events herein defined, and shall provide garage, repair, and storage facilities for the Race Cars.
(c) Driver shall serve as the driver of the Race Cars and for other promotional services and personal appearances necessary to carry out this Agreement, as further set forth in Section 4 of this Agreement. In the event Driver should be unable to serve as driver during the term of this Agreement due to injury or illness, or retirement of Driver as the driver of the Race Cars, or circumstances beyond the control of Driver, Owner shall retain a qualified substitute driver, subject to Brand Owner's approval (which approval shall not be unreasonably withheld), to complete the events and to provide promotional services and personal appearances, along with Driver, over the term of this Agreement.
(d) Owner shall provide all parts, accessories, equipment, trailers, and transporters necessary to enter the Racing Events and shall service, maintain, and repair the Race Cars so that they are in good condition and repair suitable for use in the Races.
(e) Owner will retain the services of personnel necessary to enter the Races.
(f) The Main Sponsor shall display the Brand Owner logo, a form of which is annexed hereto as Exhibit B, in [number] locations to be mutually determined by the Parties.
(g) The [name of Third-Party Sponsor] (“Third-Party Sponsor”)will display the Brand Owner logo, a form of which is annexed hereto as Exhibit C, in [number] locations to be mutually determined by the Parties.
(h) The race car transporter, hospitality transporter, and mobile machine shop transporter (for both the Main Sponsor and Third-Party Sponsor) shall display Brand Owner identification on both sides of equipment.
(i) Owner shall provide crew and driver uniforms that display Brand Owner identification, a form of which is annexed hereto as Exhibit D, and shall require the Driver and all crew members (of the Main Sponsor and Third-Party Sponsor Team) to wear such uniforms during all races. No identification or logos shall appear on the Driver or crew uniforms that conflict with Brand Owner.
(j) Brand Owner shall have the right to have their name and Logo included in the graphic package that is permanently printed on the Hospitality area tents/awnings located adjacent to the Race Team's pit area.
(k) Brand Owner shall have the right to the personal appearances described in Section 4.
(l) Brand Owner shall have the right to have Brand Owner's name and/or Trademarks included in the Press Kit used in connection with the Race Team.
(m) Owner will include the Brand Owner name, trading symbol, and Websites in all press releases issued by the Race Team or the Owner, including but not limited to press releases containing a caption reference to major Sponsors, by including a caption at the bottom of all said press releases that reads the same or similar to the following: “Please visit our sponsors [identification of other major sponsors here] and [name of Brand Owner] at [web address of Brand Owner].”
(n) Brand Owner shall have the right to access Owner's mailing list (all or part, subject to Owner's discretion) in a mutually agreeable physical format for Brand Owner's use only during the Term and only for such mailings by Brand Owner as are approved by Owner in writing, in advance.
(o) Brand Owner shall have the right, with the prior approval of Owner, to give away promotional merchandise in connection with advertising or promoting Brand Owner's services and products, pursuant to Section 5 of this Agreement as long as it does not conflict with any merchandise or souvenirs being sold in Owner's souvenir trailer.
(p) Brand Owner shall have the right to use the names, photographs, descriptions, voices, videotapes, and film clips (not to exceed sixty (60) minutes in length) and the likeness of the Race Team, Driver, the Race Cars, and the Support Vehicles for purposes of advertising and promotion of Brand Owner's products and services during the Term of this Agreement, subject to Owner's prior approval, provided that Brand Owner shall cause any graphic depiction of the Race Cars and the Support Vehicles to reflect the subjects as they actually are and without alteration or elimination of any other sponsor's trademarks or logos.
(q) Brand Owner shall have the right to advertise and promote its sponsorship of the Owner and Driver contemplated by this Agreement on Brand Owner's websites, [web addresses of Brand Owner] (collectively the “Websites”), subject to Owner's reasonable approval of the content thereof.
(r) Subject to Owner's standard terms and conditions, Brand Owner shall have the right to have a banner link, similar to that Main Sponsor and Third-Party Sponsor, to the Websites in order to advertise and promote Brand Owner's products and services and its sponsorship hereunder, on the website, if any, maintained by Owner or Driver, subject to Owner's reasonable approval of the content thereof.
(s) Owner and Race Team will use its best efforts to provide assistance to Brand Owner, as Brand Owner may request, in helping to secure hospitality needs, tickets, credentials, and media arrangements in connection with the Race Events. Owner and Race Team will use their best efforts to provide Brand Owner with two hard card annual credentials.
(t) Brand Owner shall have the right to sell or give away promotional merchandise in compliance with Section 5 of this Agreement.
4. PROMOTIONAL RESPONSIBILITIES OF OWNER
Owner and its employees shall provide and cooperate with Brand Owner to schedule the following personal appearances by the Driver (or other Team Member if Driver is not available, subject to Brand Owner's approval) during the Term of this Agreement, for the benefit of Brand Owner:
(a) at each Racing Event (onsite at the Race Track) where Brand Owner hosts any type of social or promotional event, Owner shall cause Driver to be available for at least [number] (#) appearance of at least [number] (#) minutes duration; provided that the appearances as contemplated under this Section 4(a) shall not be included under the definition of personal appearances as contemplated under Section 4(b) of this Agreement;
(b) during the Term of this Agreement, Owner shall cause Driver to be available for up to [number] (#) personal appearances per year at events scheduled by Brand Owner subject to Driver's prior professional commitments, which events may be employee, customer, charity, or other promotional events hosted by Brand Owner at locations in the continental United States designated by Brand Owner. Each such appearance shall be of such duration as mutually agreed to by the parties. Such appearances shall include, but not limited to, participation in the preparation of television, radio, or magazine advertising for Brand Owner, public appearances, photographic and recording sessions, sales meetings, and trade shows. No additional compensation shall be due to Owner or Driver in connection with such personal appearance, except that Brand Owner shall reimburse Owner for reasonable travel, hotel, and meal expenses incurred by Driver in connection with such appearances. Appearances by the Driver, in excess of [number] (#) each year, shall be at a fee of $[amount] per appearance, payable at the Owner's option in cash or in stock of Brand Owner. Provided that a personal appearance as contemplated by this Section 4(b) accompanied by a photographic or a recording session shall constitute only one appearance and not two separate personal appearances, and, if Brand Owner requests that Owner or Driver make more than one personal appearance in the same day, that too will only be counted as one appearance. It is further agreed that special consideration will be given, by the Owner and Driver, as to the travel time it takes for long-distance trips. Travel days shall not count against personal appearances.
Brand Owner will not request personal appearances at times or locations that would interfere with the Team's or the Driver's preparation for or participation in any Race Event hereunder, or with any practice, testing, development, or other prior commitment of the Owner or the Driver. All appearances by the Owner or Driver on behalf of Brand Owner shall be subject to the reasonable approval of Owner and shall be consistent with and designed to preserve and foster the good name, reputation, and public image of the Owner or Driver.
Brand Owner agrees to attempt to give Owner at least [number] (#) calendar days prior notice of the times and places the Driver is to appear. Owner agrees to exercise its best efforts to comply with such requests, consistent with the Driver's travel and racing schedule.
(c) Owner shall have no right to use or license to third parties any of Brand Owner's names, logos, trademarks, or other identifying marks without the prior consent of Brand Owner. Brand Owner gives its consent to the use of its name and trademark as displayed on the Race Car by the primary and secondary sponsors of the Race Car in advertising and promotional material. Brand Owner also agrees that Owner may use Brand Owner's name and trademark for the purpose of producing souvenir items that relate to the Main Sponsor Team and the Third-Party Sponsor Team.
(d) Owner agrees to have the Driver, while making appearances on behalf of Brand Owner away from the race track as set forth in this Section 4, wear appropriate attire, as directed by Brand Owner, subject to Owner's reasonable approval (which approval shall not be unreasonably withheld), with Brand Owner logo to be the exclusive logo on such attire.
5. OTHER SPONSOR RIGHTS
(a) In addition to the other rights granted to Brand Owner, Brand Owner shall have the right at no fee or compensation to Owner or others, to use the name “[name of Main Sponsor] Race Team” and “[name of Third-Party Sponsor] Team” and the names, trademarks, photographs of and likeness of the Driver, other team members, and the Main Sponsor car and the Third-Party Sponsor Dragster in Brand Owner's advertising (including print, point of purchase, radio, and television) during the term of this Agreement with the prior approval of Owner (which approval shall not be unreasonably withheld). All advertising and/or promotional material using the image of the Main Sponsor car and the Third-Party Sponsor car must show the race car complete with all sponsors (this also applies to the Trucks, Trailers, all support equipment, team uniforms, etc.) and shall be consistent with and designed to preserve and foster the good name, reputation, and public image of the Owner, Driver, or any of Owner's and Driver's sponsors.
(b) Merchandising. During the Term of this Agreement, Brand Owner shall have the right to:
(i) subject to the provisions of Section 5(b)(iv) below, give away promotional merchandise produced by Owner or by a licensee of Owner, bearing the Owner's, Race Car's, and/or Driver's trademarks and likeness in connection with its advertising and promotion of Brand Owner's products (“Give Away Merchandise”);
(ii) subject to the provisions of Section 5(b)(iv) below, sell promotional merchandise produced by Owner or by a licensee of Owner bearing Owner's, Race Car's, and/or Driver's trademarks and likeness in connection with its advertising and promotion of Brand Owner's products (“For Sale Merchandise”), including having the ability to sell For Sale Merchandise on the Websites or pursuant to the direction of Brand Owner;
(iii) manufacture merchandise bearing a depiction of a Car (“Manufactured Merchandise”), either with or without Brand Owner logo, provided that the Manufactured Merchandise shall not depict or contain the Main Sponsor or the Third-Party Sponsor logos, or the names, images, or marks of the Driver, [name of Driver], or the Race Team unless previously approved by Owner;
(iv) All Give-Away Merchandise, For-Sale Merchandise, and the merchandise described in Section 5(b)(iii) above: (1) shall be subject to Owner's written approval, which shall not be unreasonably withheld, (2) shall not violate Association rules or regulations, (3) if sold, given away, or distributed at a Racing Event, shall not conflict or be incompatible with the merchandise of Owner being sold, distributed, or given away by Owner or any third parties at such Racing Event; and
(v) Owner shall use its best efforts to assist Brand Owner in obtaining any licenses or permits to the extent required under this Section 5(b).
(c) Royalty, Waiver of Royalty. In the event Brand Owner desires to sell For-Sale Merchandise:
(i) Brand Owner shall pay Owner's royalty fees thereon and
(ii) Owner shall use its best efforts to assist Brand Owner in obtaining best possible wholesale price on the For-Sale Merchandise.
In the event Brand Owner desires to give away Give-Away Merchandise:
(i) Owner agrees to waive any royalty fees due to it thereon and
(ii) Owner shall use its best efforts to assist Brand Owner in obtaining best possible wholesale price on the Give-Away Merchandise.
(d) Brand Owner shall have the right to request in writing, at any time, that Owner remove its name from any and/or all signage and other materials associated with the Race Team, Race Cars, Support Vehicles, and Driver, if:
(i) any such removal is required by law or is required in order to comply with any applicable law, including, but not limited to, SEC rules and regulations or
(ii) Brand Owner shall terminate this Agreement pursuant to Section 11(b) of this Agreement.
Owner shall use its best efforts to comply with said request. Owner shall notify Brand Owner in writing if time does not reasonably permit compliance with Brand Owner's request.
6. FEE
In consideration for the obligations and services of Owner, Driver, and the sponsorship rights granted herein, Brand Owner agrees to pay  Owner a sponsorship fee (the “Sponsorship Fee”) for the years [years] racing season as follows:
Year [year]:
Annual Total: $[ amount] payable as follows:
$[amount] due upon signing of the Agreement (but no later than [date])
$[amount] due [date]
$[amount] due [date]
$[amount] due [date]
Year [year]:
Annual Total: $[ amount] payable as follows:
$[amount] due upon signing of the Agreement (but no later than [date])
$[amount] due [date]
$[amount] due [date]
$[amount] due [date]
Year [year]:
Annual Total: $[ amount] payable as follows:
$[amount] due upon signing of the Agreement (but no later than [date])
$[amount] due [date]
$[amount] due [date]
$[amount] due [date]
Time is of the essence in the making of these payments.
7. TERM
The term of this Agreement shall commence immediately and shall continue in effect through [date], unless earlier terminated as hereafter provided. The Parties acknowledge that the Race Season begins [date].
8. OPTION TO RENEW; RIGHT OF FIRST REFUSAL
(a) If Owner elects to continue to enter the Car race vehicles in the Races past the initial term of this Agreement, Owner hereby grants to Brand Owner the right to renew this Agreement for the [number]-year period commencing immediately after the expiration of the initial Term of this Agreement on the same terms and conditions as contained herein with the exception of the Sponsorship Fee specified in Section 6 and appropriate changes in dates. If Owner elects to continue to enter the Car race vehicles in the Races past the initial term of this Agreement, Owner shall propose to Brand Owner, in writing, the cost of the Sponsorship Fee on or before [date]. Brand Owner shall have the right to exercise said option, by giving Owner written notice thereof on or before [date]. If Brand Owner does not accept such proposal within such time, Owner shall be free to contract with any third party with respect to any or all such rights or Owner has the option of revoking its election to continue.
(b) In the event that Main Sponsor or Third-Party Sponsor do not renew their sponsorships with Owner, or in the event their sponsorships terminate on the Main Sponsor/Third-Party Sponsor Car, Owner agrees to give Brand Owner the first option to purchase those rights on terms and conditions similar to what Main Sponsor/Third-Party Sponsor currently has with the Owner, with the exception of the Sponsorship Fee. Brand Owner will have [number] days after receiving such proposal within which to accept and enter into a contract. If Brand Owner does not accept the proposal within such time, Owner shall be free to contract with any third party with respect to any and all such rights or Owner has the option to enter the Races without such sponsorship on the Race Car or terminate this Agreement.
9. EXCLUSIVITY AND AMBUSH PROTECTION
(a) Competitive Product Protection. During the Term, Owner represents and warrants that it will not authorize any other person or company to promote any product competitive to the products or antithetical or incompatible with the products of Brand Owner that are currently being marketed or promoted by Brand Owner as of the date of this Agreement and that it will not authorize or permit any authorized sponsor or supplier to permit any such third party (such as a tie-in partner) to be associated in any way with the Owner or to derive any rights through such authorized sponsor or supplier to be associated with the Owner with respect to a product competitive to the products hereunder.
(b) Competitive Company Protection. During the Term, Owner represents and warrants that it will not authorize any seller of any product or service competitive to any product or service of Brand Owner or antithetical or incompatible with the products or services of Brand Owner that are currently being marketed or promoted by Brand Owner as of the date of this Agreement, (regardless of the exact product or service to be promoted by such third party) to be an official or an associate sponsor or supplier of the Race Team or the Owner and that it will not authorize or permit any authorized sponsor or supplier to authorize or permit any such third party (such as a tie-in partner) to be associated in any way with the Race Team or to derive any rights through such authorized sponsor or supplier to be associated with the Race Team.
(c) Competitive/Antithetical Product Definition. For the purposes of this Agreement, competitive products shall include [list of competitors] and antithetical products shall include products produced by companies known to be involved in, or associated with, directly or indirectly, any organization dealing in or having links to, illegal arms, terrorism, the on-line gaming industry (with the exception of limited circumstances when a hotel/casino provides rooms in return for limited signage on the Race Car), pornography, or any sexually related products.
(d) Ambush Prevention-Team's Action. Owner agrees to take all reasonable measures to prevent the unauthorized use of Owner's trademarks (and facsimiles thereof) and to prevent the dilution of the value of Brand Owner's rights hereunder.
10. EARLY RETIREMENT
Beginning [date], Driver may elect, by notice in writing to Brand Owner on or before [date] of each calendar year during the term of this Agreement, to take “Early Retirement.” “Early Retirement” shall mean Driver retiring as a driver of the Race Car and from the business of Car drag racing and ceasing to fulfill his obligations from promotional services and personal appearances with respect to the Race Cars, as contemplated by Section 4 of this Agreement.
11. TERMINATION
(a) Without prejudice to any other rights or remedies that the Parties may have, either party may terminate this Agreement immediately by delivery of notice to the other party at any time if any of the following events shall occur:
(i) either party shall breach this Agreement in any material respect, which breach shall remain uncured for a period of [number] (#) days following written notice thereof;
(ii) any of the following events shall occur with respect to a party: the party shall (1) make an assignment for the benefit of creditors, (2) be adjudicated bankrupt, (3) file a voluntary petition in bankruptcy or a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts, or for any other relief under Title 11 of the United States Code or any successor or other federal or state insolvency law (“Bankruptcy Law”), (4) have filed against it an involuntary petition in bankruptcy or seeking reorganization, arrangement, readjustment of its debts, or for any other relief under any Bankruptcy Law, which petition is not discharged within thirty (30) days, (5) apply for or permit the appointment of a receiver or trustee for its assets, or (6) cease doing business for any reason;
(iii) any of the representations, covenants, or warranties made by a party in this Agreement shall prove to be untrue or inaccurate in any material respect;
(iv) Parties shall fail to mutually agree on a substitute driver in the event Driver should be unable to serve as driver during the term of this Agreement due to injury or illness or retirement or circumstances beyond the control of Driver (of which approval shall not be unreasonably withheld).
(b) Brand Owner shall have the option to terminate this Agreement at any time if any of the following occurs:
(i) Owner elects to take Early Retirement pursuant to Section 10.
(ii) Any person, entity, or group, other than Driver, purchases or acquires Controlling Interest of the Race Team. “Controlling Interest” shall mean a purchase, tender, or exchange consummated pursuant to an offer made to and accepted by a sufficient number of holders of the outstanding shares of common stock of Owner such that after consummation of such purchase, tender, or exchange, the person or group of persons proposing such purchase, tender, or exchange beneficially own 51% or more of the outstanding common stock of Owner.
(iii) In the event any governmental agency regulating securities transactions shall notify Brand Owner that Brand Owner's association with other sponsors of the Race Cars is prohibited and/or shall threaten sanctions against Brand Owner due to such association and, Owner shall fail to disassociate itself from such sponsor to the satisfaction of such agency in a timely manner.
(iv) (1) Driver commits an act involving moral turpitude or dishonesty, whether or not in connection with Driver's employment with the Owner (including, without limitation, the commission by Driver of a felony), as evidenced by his conviction therefor (including a plea of nolo contendere therefor), (2) upon occurrence of any conduct, action, or behavior by Driver or Owner that has or may reasonably be expected to have a material adverse effect on the reputation of the Brand Owner or Owner's reputation (including, without limitation, the commission of a fraud by Driver in the course of his employment with the Owner) provided that in the event that Brand Owner terminates this Agreement under Section 11(a)(i) as a result of Owner's breach of Section 3 (a), Owner shall refund a pro-rata portion of the Sponsorship Fee paid by Brand Owner under Section 6 of this Agreement for the calendar year of termination.
Upon termination or expiration of this Agreement (i) Owner shall remove all Brand Owner references and trademarks from the Race Cars, transporters, hospitality units, supporting vehicles and materials in the possession of Owner and (ii) Brand Owner shall immediately cease using the names, photographs, descriptions, voices, likeness, trademarks, trade names, and logos of Owner, Driver, Race Car and Race Team, and Owner's sponsors.
12. ACKNOWLEDGMENT OF RISK
Owner acknowledges and agrees that race cars entered in any Race by Owner shall be entered for Owner's sole account and risk. Neither Owner nor its Driver, mechanics, crew, other employees, or shareholders shall make any claim against Brand Owner for salary or other payment except as specifically provided herein. Owner shall obtain from its Driver and other employees appropriate releases in the form attached hereto as Exhibit E absolving Owner and Brand Owner and their subsidiaries, affiliates, officers, employees, and shareholders of all liability for damages, injury, or death suffered by the Driver or other employees as a result of or arising out of racing-related activities.
13. LIABILITIES AND INDEMNITY
Owner shall be solely responsible for all claims and liabilities, of whatever kind, arising out of or incidental to its racing activities, including but not limited to, claims for personal injury and property damage of Owner, its Driver, Owner's employees, spectators, other racing teams, and other third parties. Owner further agrees to defend, indemnify, and save Brand Owner, its officers, directors, agents, and employees harmless from and against any and all claims, actions, suits, judgments, cost, and fees, including reasonable attorney's fees, which arise from the acts and/or omissions of Owner, its Driver, mechanics, employees, agents, contractors, spectators, other racing teams, or third parties under its control or which arise out of or are related to Owner's racing activities, transportation to and from Races, and all other acts or omissions of Owner and Owner's employees and agents.
14. INSURANCE
Owner shall obtain and keep in force a policy or policies of insurance of the following types and limits to cover the Race Cars, Team transport vehicles, and all activities of Owner, the Team, and all of the Owner's employees and agents during this Agreement:
a) Racing Owners/Sponsors Liability policy.
b) Commercial general and automobile liability in combined single limits of at least $[amount]. Such policies shall provide coverage on an occurrence basis and shall include Brand Owner as a named insured. No such liability insurance shall be deemed in any way to limit Owner's obligations under Paragraph 10 of this Agreement. Upon request of Brand Owner from time to time, Owner shall deliver satisfactory proof that such insurance is in full force and effect.
c) Worker's Compensation—as required by law.
15. COMPLIANCE WITH LAW
Owner shall, at its sole expense, comply with all federal, state, and local laws and regulations applicable to its business and racing activities contemplated hereby.
16. WARRANTIES
(a) Owner Warranties. Owner represents and warrants that:
(i) it has the full right and legal authority to enter into and fully perform this Agreement in accordance with its terms without violating the rights of any other person;
(ii) Owner's trademarks do not infringe the trademarks or trade names or other rights of any other person;
(iii) it has all government licenses, permits, or other authorizations necessary to participate in the Events as contemplated under this Agreement;
(iv) it will comply with all applicable laws, regulations, and ordinances pertaining to the promotion and conduct of its business hereunder; and
(v) it has not previously granted the promotional and other rights granted pursuant to this Agreement for the years [years] and that such rights granted to Brand Owner will not conflict with any rights granted to Sponsors.
(b) Brand Owner Warranties. Brand Owner represents and warrants that:
(i) it has the full right and legal authority to enter into and fully perform this Agreement in accordance with its terms without violating the rights of any other person and
(ii) all Products furnished by Brand Owner shall be of high quality and shall be free from product defects and shall be merchantable and suited for their intended purpose.
17. PUBLIC ANNOUNCEMENT; PRESS RELEASES
(a) Owner acknowledges and agrees that Brand Owner shall file a current report on Form 8-K with the Securities and Exchange Commission (the “SEC”), upon the execution of this Agreement, setting forth the terms of this Agreement. Brand Owner undertakes to apply with the SEC for confidential treatment of the Sponsorship Fee terms of this Agreement.
(b) Owner acknowledges and agrees that Brand Owner shall have the right to make a Public Announcement or otherwise make any such public statement relating to the ordinary course of business of Brand Owner, during the Term of this Agreement without the prior approval of Owner, in the form of a statement annexed hereto on Schedule I.
(c) Owner acknowledges and agrees that Brand Owner shall have the right to make a Public Announcement or otherwise make any such public statement during the Term of this Agreement, subject to prior approval of Owner, which approval shall not be unreasonably withheld, and Owner shall not issue any press release or otherwise make any public statement relating to the ordinary course of business of Brand Owner, without the prior consent of Brand Owner, which consent shall not unreasonably be withheld, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. “Public Announcement” means any press release, filing, or other public announcement that (A) discloses the transactions contemplated in this Agreement or (B) discloses any of Brand Owner's earnings, revenues, other financial information, joint ventures, agreements, or other material developments to the extent applicable to this Agreement.
(d) Notwithstanding Section 18 of this Agreement, Owner acknowledges and agrees that Brand Owner shall have the right to make any filing with the SEC (the “SEC Filing”) or any such public statement or disclose the terms of this Agreement, without the prior approval of Owner if such disclosure is required by law or by SEC rules or regulations. Brand Owner undertakes to apply with the SEC for confidential treatment of the Sponsorship Fee terms of this Agreement.
18. APPROVAL
To the extent approval of Owner or Driver is required by this Agreement, Owner agrees to use its best efforts to respond to such approval request in writing within [number] Business Days of the receipt of the request (the “Request”) as evidenced by a signature of Owner or Owners representative, which said approval shall not be unreasonably withheld. “Business Day” shall mean any day other than Saturday, Sunday, the day of the Event, or other day on which commercial banks in the City of New York are authorized or required by law to remain closed.
19. REMEDIES OF OWNER
In the event of the occurrence of any of the following, Owner shall have the rights set forth below:
(a) If Brand Owner should breach this Agreement in any respect, which breach shall remain uncured for a period of [number] (#) days following written notice thereof by Owner, Owner shall have the right to terminate this Agreement at any time thereafter. In addition, after any such breach but prior to termination by Owner, Brand Owner shall remain obligated to perform under this Agreement, but Owner shall have the right to remove Brand Owner's name from the car and to terminate any exhibition of Brand Owner's name by the Owner, until such breach is cured.
(b) If proceedings seeking to have Brand Owner declared bankrupt or insolvent should be brought by or against Brand Owner, or Brand Owner should cease doing business for any reason, Owner shall have the right to terminate this agreement.
20. INDEPENDENT CONTRACTOR
Owner's relationship to Brand Owner is that of an independent contractor, and this Agreement is not intended to and shall not be deemed to create any agency, employment, partnership, or joint venture relationship between the parties hereto. Owner's Driver, mechanics, and other employees are not intended to be and shall not be deemed to be employees or agents of Brand Owner.
21. NOTICES
Any notice required by this Agreement shall be sent by a commercial courier delivery service (signature required) or deposited by certified mail, return receipt requested, postage prepaid, and addressed as follows:
If to Owner:
[name and address of Owner]
If to Brand Owner:
[name and address of Brand Owner]
22. ENTIRE AGREEMENT
This Agreement incorporates the complete and final agreement of the parties relative to the subject matter hereof, and no covenant not set forth herein shall be binding. This Agreement may not be amended or supplemented other than in writing signed by both parties hereto.
23. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that neither Owner nor Brand Owner shall have any right to assign this Agreement or delegate the performance of any duty hereunder, by operation of law or otherwise.
24. JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of the State of [State], without regard to its principles of conflicts of laws.
25. CAPTIONS
The captions herein are inserted for convenience of reference only, and shall not be used in interpreting any of the terms of the Agreement.
26. WAIVER
Any failure or delay in exercising any right or remedy hereunder shall not be deemed to be a waiver of such right or remedy or of any other right or remedy.
27. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one original Agreement. This Agreement, once executed by a party, may be delivered to the other party hereto by facsimile transmission of a copy of this Agreement bearing the signature of the party so delivering this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed this [date].
[name of Owner]
By:
Title:
[name of Brand Owner]
By:
Title:
SCHEDULE I
“[Name of Brand Owner] is proud to be an official associate sponsor of [name of Owner] and the [name of Main Sponsor] Car driven by [name of Driver].”