SPONSORSHIP & SERVICES AGREEMENT
This agreement (“Agreement”), dated as of [ INSERT DATE] is entered into by and between [INSERT COMPANY A NAME], [ADDRESS], Attn: [NAME] (“Sponsor”), and [INSERT COMPANY B NAME], [ADDRESS], Attn: [NAME] (“COMPANY B”).
1. Term: The term of this Agreement (the “Term”) shall run from the date of signature hereof through [DATE], including, without limitation, over the entire [insert name of event].
2. Sponsorship Fee:
(a) Sponsor shall pay to [COMPANY B] a sponsorship and services fee (the “Fee”) of $____ as follows: (i) $____ on or before [DATE];
(ii) $____ on or before [DATE]; and
(iii) $____ on or before [DATE].
(b) (i) Sponsor shall provide reasonable quantities of the Sponsor branded product described below (collectively, the “Product”) at each [event] during the Term up to the maximum amounts indicated below:
(A) up to ____ cases of assorted water product;
(B) up to ____ cases of assorted soda/juice product; and
(C) up to ____ cases of Sponsor product.
[COMPANY B] shall advise Sponsor of the adjusted quantities required from time to time in accordance with reasonable demand and usage thereof. During each year of the [event], Sponsor shall deliver the Product, at its sole cost and expense, to no fewer than ____ venues, to be mutually designated by [COMPANY B] and Sponsor. Sponsor shall hire, pay and be solely responsible for one individual (the “Product Manager”), who shall be approved by [event] (such approval not to be unreasonably withheld) and who shall travel with the [event] and be responsible for the general disbursement of the Product, including stocking daily supplies of beverages at all [event] stages. Notwithstanding the foregoing, [COMPANY B] shall provide transportation, lodging and meals for the Product Manager in accordance with subparagraph 5(f) below.
(ii) Sponsor shall have the option to provide additional Product for the kick-off party for the [event], at Sponsor’s sole cost and expense. If Sponsor intends to exercise such option, Sponsor shall notify [COMPANY B] by no later than [DATE].
(iii) At either party’s request, Sponsor and [COMPANY B] shall discuss the terms upon which [COMPANY B] and Sponsor may agree for Sponsor to provide additional Product to the [event]for use by artists and athletes backstage at the [event] and on artist and athlete buses, including reimbursement of Sponsor’s actual costs therefore.
2A. Option: Provided that [COMPANY B] conducts [event] in substantially the same manner as the [event], Sponsor shall have an option (the “Option”) to be a Sponsor for the [event] on the same terms as apply herein with respect to the [event] (including without limitation with respect to subparagraph 2(b) above and paragraph 3 below), except that:
(a) in lieu of the fee provided for in subparagraph 2(a) above, Sponsor shall pay [COMPANY B] a Fee with respect to the [YEAR [event]] in the amount of $____, as follows:
(i) $____ on or before [DATE],
(ii) $____ on or before [DATE];
(iii) $____ on or before [DATE]; and
(iv) $____ on or before [DATE]; and
Sponsor may exercise the Option by giving notice to [COMPANY B] at any time on or prior to [DATE].
3. Sponsorship/Nonexclusivity:
(a) Sponsor shall be an Associate Level sponsor for the [event].
(b) Sponsor acknowledges and agrees that Sponsor is not the sole or exclusive sponsor of the [event], and that [COMPANY B] shall be entitled to permit other persons or entities to act as sponsors of the [event], or to refrain therefrom, in its sole discretion. Notwithstanding the foregoing, during the Term Sponsor shall have exclusivity for and be the exclusive sponsor for all beverages,
4. Control of [event]: Sponsor acknowledges that [COMPANY B] shall have sole and exclusive control over the [activities during the event].
5. Sponsor’s Promotional Entitlement:
(a) Sponsor shall be entitled to the following:
(i) Provided that Sponsor approves [COMPANY B] ad mats by [DATE], [COMPANY B] shall include the name and/or logo of Sponsor for Sponsor’s brands (both of which are referred to together as the “Mark”) in substantially all full-page print advertisements created and/or placed directly by [COMPANY B] or under [COMPANY B]’s control during the Term which relate solely to the [event] and embody the name(s) and/or logo(s) of substantially all other sponsors of the [event]. The size, style and location of the Mark in such advertisements shall be determined by [COMPANY B], in its sole discretion, provided that Sponsor’s logo shall be not less than approximately 25% smaller than the logo of any Title Sponsor appearing in such advertisements. The foregoing placements are expected to include, but not be limited to, placements in all co-sponsored media elements related to the [event].
(ii) [COMPANY B] shall make available to Sponsor, at [COMPANY B]’s sole cost and expense, either one (1) full-page or two half-page, four-color advertisement(s) in the official [event] program. Sponsor shall be solely responsible for providing all materials necessary for said advertisement(s) (i.e., layout design, concept, artwork, etc.), and shall deliver same, at Sponsor’s sole cost and expense, to a location to be designated by [COMPANY B], no later than [insert date] At Sponsor’s timely request, [COMPANY B] shall make additional ad pages available to Sponsor on an “at cost” basis.
(iii) [COMPANY B] shall conduct a street marketing campaign in select [event] markets designated by [COMPANY B]. Such street marketing campaigns will begin in such select markets approximately two (2) weeks prior to the date on which tickets for the [event] are first made available for sale in such market. [COMPANY B] shall include Sponsor’s Mark on flyers and posters to be distributed as part of such marketing campaigns in high youth traffic areas and locations in the designated markets. If Sponsor desires to distribute samples of its products through such street marketing campaigns, Sponsor and [COMPANY B] shall agree on the terms and conditions on which [COMPANY B] shall provide for such distribution, including an additional charge to [COMPANY B] for such distribution.
(iv) [COMPANY B] shall use commercially reasonable efforts to facilitate incidental radio exposure for Sponsor when such exposure may be available through cross-promotional opportunities arranged by [COMPANY B]. An example of such a cross-promotional opportunity would be the distribution of Sponsor furnished gift bags to key radio stations in designated [event] markets.
(v) No inadvertent failure to incorporate the Mark or to otherwise reference Sponsor in any manner or location as provided in this subparagraph
5(a) shall be deemed a breach hereof, provided [COMPANY B] endeavors to prospectively cure such failure, if possible, following the [COMPANY B] becoming aware thereof. Notwithstanding the foregoing, should such failure be material, Sponsor shall be entitled to an equitable reduction in the Fee.
(b) Subject to the prior written approval of [COMPANY B] in each instance, which may not be unreasonably withheld or delayed, Sponsor shall have the right to identify itself as a sponsor of the [event] in its television, radio and/or print advertising; provided, however, that the [event] must in all instances be identified as the “[insert name of event] – Presented by [TBD and TBD]”, or as [COMPANY B] shall otherwise direct in writing.
(c) Subject to local legal restrictions, if any, (1) Sponsor shall have the nonexclusive right to post eight (8) banners (not to exceed 2′ x 6′ in size) (the “Banners”) containing a mutually approved design incorporating the Mark, at each concert location of the [event], which shall be erected by [COMPANY B] on Sponsor’s behalf at all concert locations of the [event]; The specific location, placement and all other aspects of the display of the Banners shall be subject to [COMPANY B]’s approval, provided that [COMPANY B] shall use commercially reasonable efforts to cause such banners o be displayed in high traffic locations at [event] venues. Sponsor shall be solely responsible for all costs and expenses associated with the creation of the Banners and materials to be applied to the Ramps and shall, at Sponsor’s sole cost and expense, deliver the Banners, along with all other materials which Sponsor intends to be transported by [COMPANY B] in accordance with paragraph (d), below, to [COMPANY B] where and as directed by [COMPANY B], by no later than [INSERT DATE]. [COMPANY B] shall have no liability whatsoever for any loss of or damage to the Banners posted by Sponsor at concert locations of the [event], and shall have no obligation to return any Banners to Sponsor upon the conclusion of the [event].
(d) [COMPANY B] shall provide to Sponsor ground space approximately 20′ by 20′ in size or larger, if required to accommodate Sponsor’s climbing wall, for an enclosed tent or other approved Sponsor experience at each concert location of the [event] (the “Sponsor Tent”), which Sponsor Tent and wall shall be provided by Sponsor. Sponsor may hang banners and conduct approved patron participation activities within the Sponsor Tent; provided, however, that none of the foregoing activities shall involve the display or distribution of footwear, snowboard boots or bindings, wearing apparel, any product on which appears the name and/or logo of the [event] (or any artwork, trademarks or service marks associated therewith), or violate any rights held by other sponsors of the [event] of which Sponsor has been advised. Sponsor may also distribute approved free 4-ounce samples of Sponsor’s beverages and approved promotional materials, and conduct approved free product/merchandise give-a-ways within the Sponsor Tent. All such materials and plans will be submitted by Sponsor to [COMPANY B] for approval by [COMPANY B] (and where appropriate the Venue operators) by [Insert Date]. All costs associated with the creation, operation and management of the Sponsor Tent and wall, and any activities conducted therein, including (without limitation) the setup, break down and staffing of the Sponsor Tent and wall, shall be borne solely by Sponsor, except that [COMPANY B] shall provide for internal transportation of the Sponsor Tent and wall, and a reasonable volume of Sponsor’s property and materials used in connection therewith, from the location of the first concert of the [event] through the location of the last [event], provided that the Sponsor Tent and wall shall fold up into a space no more than 10′ by 14′ and be able to fit in the back of a standard semi-truck. [COMPANY B] shall have no liability whatsoever for any injuries to persons, or loss or damage to property arising out of or in any way related to the Sponsor Tent, or to any property, materials, products and/or merchandise which Sponsor uses, distributes and/or exhibits in the Sponsor Tent, or otherwise, at concert locations during the [event].
(e) Sponsor shall not sell merchandise of any kind at [event] venues, whether in the Sponsor Tent or otherwise, without the prior written permission of [COMPANY B]. To the extent [COMPANY B] approves of Sponsor’s sale of any merchandise, including but not limited to sampler compact discs, Sponsor shall be solely responsible for any and all costs and expenses relating to the creation, shipping, transportation, and vending of such merchandise. Without limiting the generality of the preceding sentence, Sponsor shall be solely responsible for any and all “hall,” “vendor,” and other fees or amounts charged by any promoters or venue operators in connection with the sale of merchandise, and shall be obligated to pay the same fees as those paid by the artists performing on the [event] in respect of their own merchandise sales. Sponsor shall not endeavor in any way to negotiate or barter for lower “hall” or “vendor” fees than those imposed upon [COMPANY B] and the artists performing on the [event].
(f) [COMPANY B] shall provide daily meals, internal ground transportation to each concert location of each [event], and nightly lodging on a [event] bus or in a hotel on off days (along with the staff and crew of the [event]) for the Product Manager and two (2) other representatives of Sponsor. In the event that Sponsor desires [COMPANY B] to provide daily meals, internal ground transportation and nightly lodging for additional representatives of Sponsor, [COMPANY B] shall provide such services for an additional fee of $____ per person for each year of the [event], provided that Sponsor has given [COMPANY B] adequate notice thereof and subject to any applicable space limitations of the [event]. Sponsor shall pay [COMPANY B] such amount within 10 days of Sponsor’s request for such additional slot. As between [COMPANY B] and Sponsor, Sponsor shall be solely responsible for transporting its representative to and from the first and last concert venues of the [event], respectively. Sponsor acknowledges that [COMPANY B] shall have no liability for any injuries to persons or loss or damage to property arising out of or in any way related to said [event] bus (including, without limitation, theft of the [event] bus or any accident in which the [event] bus is involved), regardless of [COMPANY B]’s culpability in connection therewith.
(g) [COMPANY B] shall provide Sponsor with the following tickets:
(i) twenty (20) complimentary general admission tickets for each [event] Date for use by Sponsor as trade giveaways, employee incentive or other promotional purposes. These tickets will be provided to Sponsor in bulk, approximately three (3) weeks prior to the commencement of the [event]; and
(ii) ten (10) Partner Privilege Passes for giveaways or employee incentives for each [event] Date. [COMPANY B] will work with Sponsor in select markets to provided Sponsor with additional Partner Privilege Passes.
Sponsor will be responsible for all further distribution of the foregoing tickets and passes. All tickets and passes provided to Sponsor hereunder shall be for Sponsor’s business and promotional use only, and may not be resold under any circumstances.
(h) Sponsor shall participate in the[ INSERT NAME OF EVENT] in connection with the [event] in accordance with and which promotion shall be conducted substantially as set forth in Exhibit A hereto, with such modifications as may be necessary to comply with artist or venue requirements or to comply with local laws.
(i) (A) During the period commencing on the launch of [INSERT NAME OF WEBSITE] and continuing throughout the Term, [COMPANY B] shall make available to Sponsor one (1) banner advertisement on the [NAME OF WEBSITE]. Such banner advertisement shall be equivalent in size to that being provided to other associate sponsors of the [event], and such banner advertisement shall rotate among Sponsor and other [event] sponsors throughout the duration of the Term. It is anticipated that [COMPANY B] shall launch the [event] Website on or around [Insert Date]. Sponsor shall provide banner artwork and logo to [COMPANY B] promptly after its execution of this agreement.
(B) Throughout the Term, Sponsor shall provide “click through” buttons to [insert name of website] and the [event] Website on the home page of its primary website (the “Sponsor Website), and [COMPANY B] shall cause [name of website] and the [event] Website to provide a “click through” button to the Sponsor Website on each such site throughout the Term.
(j) During the Term, Sponsor shall have the right to purchase a limited amount (such amount to be mutually determined by Sponsor and [COMPANY B]) of [COMPANY B]’s generally available retail products at the actual landed f/o/b price plus shipping and on an “as-is” basis. Payment for all such product shall be made to [COMPANY B] in advance and all such product shall be used solely for distribution to employees directly involved in the [event]or for distribution to Sponsor’s employees as incentives. Such product will not be resold under any circumstances.
6. [COMPANY B]’s Use of Sponsor’s Materials: Except as expressly set forth herein, [COMPANY B] shall have the right, but not the obligation, to use the Mark and any other trade-name(s), trademark(s) and/or logo(s) of Sponsor in connection with: (i) any and all advertising and promotion of the [event]; (ii) any and all [event] merchandise created and sold or otherwise distributed by [COMPANY B]; (iii) any phone records and/or audiovisual works relating to the [event], including (without limitation) those featuring musical, athletic and/or other performances or footage from the [event];and (iv) any and all news items, press releases and/or other information in any media relating to the [event].
8. Warranties/Representations/Indemnity/Insurance:
(a) Each party represents and warrants that it has the right, power and authority to enter into this Agreement, to grant the rights granted herein and to perform the duties and obligations described herein. Sponsor represents and warrants that every person who shall perform services for or on behalf of Sponsor in connection with the [event] is at least eighteen (18) years old as of the date hereof.
(b) Sponsor represents and warrants that it shall obtain and/or maintain adequate advertising and liability insurance policies during the Term to cover all activities undertaken by or on behalf of Sponsor in connection with the [event], including but not limited to the operation of the Sponsor Tent and the visitation thereof by [event] patrons. [COMPANY B], [ADDRESS], and all of their respective members, agents, employees, licensees and assigns, shall be named as an additional insured on each of Sponsor’s insurance policies relating to injuries to persons or property including, but not limited to, comprehensive general and public liability insurance, which policies shall be free of encumbrance(s) in the amount of at least Three Million Dollars ($3,000,000.00) for personal injury and Three Million Dollars ($3,000,000.00) for property damage, and shall be issued from qualified insurance carriers currently rated A minus or better by A.M. Best [COMPANY B]. Sponsor shall also obtain and/or maintain appropriate Workers Compensation Insurance for all personnel providing services to or on behalf of Sponsor in connection with the [event] or who are otherwise present at [event] venues on behalf of Sponsor. Sponsor shall provide [COMPANY B] with certificates of each of the foregoing insurance policies no later than thirty (30) days prior to commencement of the [event]. Sponsor further warrants and represents that it shall comply with any local laws, tariffs, taxes and/or customs requirements, and shall be solely responsible for any and all payments which may be due in connection therewith.
(c) [COMPANY B] agrees to indemnify, defend and hold Sponsor and its officers, directors, agents, representatives, shareholders and employees harmless from and against any and all claims, suits, expenses, damages or other liabilities, including reasonable attorney’s fees and court costs, arising out of: (i) the breach by [COMPANY B] of any of the representations and warranties made by [COMPANY B] in this Agreement; (ii) any personal injury or property damage arising out of or in connection with the [event]; and/or (iii) any activity by or on behalf of [COMPANY B] in connection with the [event]; provided, however, the foregoing indemnity shall not apply to any claims, suits, expenses, damages or other liabilities, which arise out of, relate to, or are contributed to by any act or omission of Sponsor.
(d) Sponsor agrees to defend, indemnify, and hold [COMPANY B], performers engaged by [COMPANY B], all other sponsors of the [event], and all of their respective officers, directors, agents, representatives, shareholders and employees, harmless from and against any and all claims, suits, expenses, damages or other liabilities, including reasonable attorney’s fees and court costs, arising out of: (i) the breach by Sponsor of any of the representations or warranties made by Sponsor in this Agreement; (ii) the use by [COMPANY B], its respective agents and/or assigns, of any materials supplied by Sponsor hereunder, including (without limitation) any signage, banners, names, trademarks, service marks, trade-names or logos; and (iii) any action of any kind, including (without limitation) any action for personal injury or property damage in respect of or concerning any material, product or service offered or supplied by Sponsor hereunder or any activity occurring in or in connection with the Sponsor Tent or otherwise conducted or undertaken by or on behalf of Sponsor in connection with the [event].
9. Miscellaneous:
(a) Sponsor acknowledges that all rights in and to the [event], [COMPANY B]’s name and logo, the name and logo of the [event], and all artwork, trademarks, service marks and all goodwill associated therewith shall be owned and controlled exclusively by [COMPANY B], and Sponsor shall have no right, title or interest therein or thereto. Similarly, [COMPANY B] acknowledges that all rights in and to both of the Marks and all other trademarks owned by the Sponsor, including but not limited to, the name and logos of the Sponsor and all artwork, trademarks, service marks and all goodwill associated therewith shall be owned and controlled exclusively by Sponsor, and [COMPANY B] shall have no right, title or interest therein or thereto
(b) Notices by either party to the other shall be given by personal service, by registered or certified mail, return receipt requested, or by private overnight mail courier services, to the respective addresses set forth on page 1, above.
(c) If any provision of this Agreement is declared invalid as contrary to law or public policy, the remaining provisions hereof shall continue to remain in full force and effect.
(d) The validity, enforceability, and interpretation of this Agreement shall be determined in accordance with the laws of the State of [COUNTRY].
(e) A waiver of a breach or default will not constitute a waiver of any terms or conditions of this Agreement or of any subsequent similar breach or default.
(f) Except as otherwise provided in this Agreement, no representations, warranties, or guarantees of either party not contained in this Agreement shall be binding on the parties.
(g) All Exhibits which are attached hereto are incorporated herein by reference.
(h) Any dispute, controversy or claim arising out of or relating to this Agreement or the breach or termination hereof shall be settled by binding arbitration conducted by JAMS/Endispute (“JAMS”) in accordance with JAMS Comprehensive Arbitration Rules and Procedures (the “Rules”). The arbitration shall be heard by one arbitrator to be selected in accordance with the Rules in Orange County, [COUNTRY]. Judgment upon any award rendered may be entered in any court having jurisdiction thereof. Within 7 calendar days after appointment the arbitrator shall set the hearing date, which shall be within 90 days after the filing date of the demand for arbitration unless a later date is required for good cause shown and shall order a mutual exchange of what he/she determines to be relevant documents and the dates thereafter for the taking of up to a maximum of 5 depositions by each party to last no more than 2 days in aggregate for each party. Both parties waive the right, if any, to obtain any award for exemplary or punitive damages or any other amount for the purpose or imposing a penalty from the other in any arbitration or judicial proceeding or other adjudication arising out of or with respect to this Agreement, or any breach hereof, including any claim that said Agreement, or any part hereof, is invalid, illegal or otherwise voidable or void. In addition to all other relief, the arbitrator shall have the power to award reasonable attorney’s fees to the prevailing party. The arbitrator shall make his or her award no later than 7 calendar days after the close of evidence or the submission of final briefs, whichever occurs later.
(i) Neither party shall be liable for any failure of or delay in the performance of their respective obligations under this Agreement to the extent such failure or delay is due to circumstances beyond its reasonable control, including (without limitation) acts of God or a public enemy including, but not limited to floods, wars, civil disturbances, sabotage, accidents, insurrections, blockades, embargoes, storms, explosions, labor disputes and/or acts of any governmental body, nor shall any such failure or delay give either party the right to terminate this Agreement.
(k) No breach by either party hereof shall be deemed material unless the other party shall give written notice of such purported breach to the breaching party and the breaching party has not cured such breach within seven (7) business days after receipt of such notice.
(l) This Agreement shall not be deemed to create any joint venture, partnership or agency between the parties hereto. It is understood that each party to this Agreement shall be independent of the other and that neither party shall have the right or authority to bind the other party.
(m) This Agreement constitutes the complete agreement between the parties hereto on the subject matter hereof, and all prior or contemporaneous agreements between the parties, whether oral or written, shall be deemed merged herein. This Agreement may not be modified or amended except by a written instrument duly executed by the party to be charged.
(n) Sponsor shall not have the right to assign, sell, lease, license or sublicense, in whole or in part, any of its rights or obligations hereunder, including (without limitation) Sponsor’s right to post signage and hang banners at [event] concerts (including in and about the Sponsor Tent), and Sponsor’s right to ground space for and to conduct activities in the Sponsor Tent at [event] concerts.
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
[INSERT NAME OF COMPANY A] SPONSOR [INSERT NAME OF COMPANY B]
By:
By: By:
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An authorized signatory
