These Award Program Sponsorship terms and conditions (“Terms and Conditions”) apply to a sponsorship of an awards program and the associated promotional considerations (“Program”) which may coincide with an in-person, virtual or hybrid award event(s) (“Event“), with the Event and Program details being described in the applicable Statement of Work, Purchase Order and/or Insertion Order (“Contract”) between Haymarket Media, Inc. (“HMI”), a New York Corporation, and the sponsor (“Sponsor”) (identified in the Contract) (together hereinafter referred to as “Parties”, each a “Party”). The Terms and Conditions and Contract shall collectively be hereinafter referred to as the “Agreement.”
1. Program; Changes
1.1 Program Details. The Contract shall specify details about the Program such as: the promotional opportunity/ies, activations, compensation, schedules, and other material details. The Contract must be signed by an authorized representative of each Party.
1.2 Changes to Program. Sponsor may request in writing to add promotional considerations to the Program in the Contract and HMI shall advise Sponsor of the anticipated cost impact due to the additions within a reasonable time (email being sufficient). Sponsor understands and acknowledges that the impact on timelines for HMI to provide additional promotional considerations will vary based on the nature of the requested promotional considerations. Sponsor agrees that HMI shall not be in breach for any delay resulting from changes requested. To be effective, the Parties shall negotiate any revisions to the Program in the Contract resulting from such change requests and Parties shall confirm all such revisions, including revised compensation if appropriate, in a revised Contract (“Revised Contract”) that shall be signed by an authorized representative of each Party. Hereinafter, all references to the Contract shall also be deemed references to Revised Contract, as applicable.
2.1 Sponsor Responsibilities.
2.1.1 Sponsor Materials. Sponsor shall provide the content required in connection with the Program and Event, typically logos, trademarks, and other brand assets and may also include other information, material, art, design, presentation slides, speaker notes, documents, images, text, videos, info-graphics, and articles, as related to the Program and Event (“Sponsor Materials”).
2.2 Timeliness and Approvals.
2.2.1 General. The success of the Program is reliant upon the Sponsor providing, in a timely manner, any and all Sponsor Materials, instructions, specifications and approvals, and the Sponsor adhering to all required timelines. Sponsor understands that any delay or failure by Sponsor to provide required materials or approvals may adversely impact the effectiveness of the Program, and thereby result in: (i) changes to the Program details and/or deliverables, if any, noted in the Contract; (ii) the requirement of a change order to the Contract; and (iii) the application of additional costs as a consequence of such change order.
2.2.2 Events. All Sponsor Materials that are to be included in the marketing collateral for the Program at or in conjunction with the Event must be pre-approved by HMI and delivered by the deadline provided by HMI for inclusion in the Event or in any related marketing collateral.
2.3 Recordings. If the Sponsor is provided with a recording of the Program/ Event or any portion thereof (“Recording”), it shall be used solely for Sponsor’s internal use and records only, and shall not be posted on Sponsor’s website or other third party websites, including but not limited to social media channels. The Sponsor may share a link to the Program/ Event, as applicable, hosted by HMI. Except for as stated herein, all use of Recordings shall be subject to HMI’s review and approval, in each instance of use.
2.4 Event Venue. In case of Events, Sponsor and if applicable, their guests must comply with the rules and regulations governing the Event and the associated venue (“Venue”), whether in person or virtual, or both. HMI requires Sponsor and if applicable, guests to conduct themselves with the highest ethical standard at all times. HMI reserves the right to, and may in its sole discretion, refuse admission to any person or to remove any person after the start of an Event. In such circumstances, there will be no refund of the entry fee. Sponsor shall pay for any and all damages to the Venue, associated facilities or the property of others caused by the gross negligence or willful misconduct of the Sponsor or their guests. Sponsor expressly assumes all risks associated with, resulting from or arising in connection with Sponsor’s, participation or presence at such an Event, including, without limitation, all risks of theft, loss, harm, damage or injury to the person (including death), property, business or profits of Sponsor, whether caused by a third party’s negligence, a third party’s intentional act, accident, act of God or otherwise. Sponsor has sole responsibility for its property or any theft, damage or other loss to such property (whether or not stored in any courtesy storage area), including any subrogation claims by its insurer. Sponsor hereby releases HMI and the Event Venue from all liability with respect to any and all risks, losses, damages and liabilities described in this paragraph.
2.5 HMI Responsibilities.
2.5.1 General. HMI shall provide the timelines, materials and information necessary for the success of the Program to the Sponsor in a timely manner.
3. INVOICES; PAYMENT
3.1 Payment is due thirty (30) days from the date of the invoice, unless otherwise stated in the Contract. If Sponsor fails to make a payment in accordance with these Terms and Conditions or as otherwise noted in the Contract, HMI may terminate the Contract without further notice and without obligation to refund monies previously paid. In the event HMI refers Sponsor’s account to a collection agency or an attorney due to non-payment, Sponsor will be liable for all of HMI’s costs and expenses incurred in connection with Sponsor’s non-payment, including, without limitation, court costs and reasonable collection or attorney fees.
4.1 Each Party receiving confidential information (“Receiving Party”) of the other Party (“Disclosing Party”) will hold such confidential, proprietary and non-public information (“Confidential Information”) of the Disclosing Party in strict confidence and treat that information with the same degree of care as it uses in dealing with its own confidential information, but no less than a reasonable degree of care. Each Party will use the other Party’s Confidential Information solely for the purposes of the Contract. Either Party may share such Confidential Information with its affiliates and their respective employees, directors, or officers who need to know it and if they have agreed with such person in writing to terms at least as restrictive as those in the Agreement. Other than as allowed in this section, each Receiving Party agrees to not disclose or make the Disclosing Party’s Confidential Information available to any third party, except as specifically authorized by the Disclosing Party in writing. The Receiving Party’s obligations do not apply to information that: (a) was known to them without restriction before receipt from the Disclosing Party; (b) is publicly available through no fault of the Receiving Party; (c) is rightfully received by the Receiving Party from a third party without a duty of confidentiality; or (d) is independently developed by the Receiving party without reference to any Confidential Information of Disclosing Party as demonstrated by written records. The Receiving Party may disclose Confidential Information when compelled to do so by law, but only if it: (a) promptly provides prior notice to the Disclosing Party and an opportunity for the Disclosing Party to seek a protective order, and (b) discloses only the minimum amount of Confidential Information that is necessary to comply with the required disclosure. Upon the Disclosing Party’s written request, the Receiving Party will promptly return all Confidential Information and copies, or certify in writing that it has destroyed all such materials.
5. INTELLECTUAL PROPERTY OWNERSHIP AND LICENSES
5.1 Ownership. Except as noted in this section, each Party will retain interest in and all ownership of its respective intellectual property developed before or outside of the scope of this Contract, and nothing in the Terms and Conditions or the Contract shall serve to license or transfer either Party’s intellectual property rights to the other Party.
5.2 HMI License. HMI grants a non-exclusive, worldwide limited license for the Term (defined below) to the Sponsor to use, reproduce, display, publish, disseminate HMI Materials (defined below) solely in connection with the Program and Event, in accordance with these Terms and Conditions.
5.3 Sponsor License. Sponsor hereby grants a non-exclusive, worldwide, perpetual, limited license to HMI to use, reproduce, publish, republish, modify (for formatting purposes), syndicate, broadcast, distribute, disseminate, publicly display, publicly perform Sponsor Materials, in whole or in part, in any form, media or technology, whether now know or hereinafter developed, solely in connection with the Program, Event and any related marketing collateral, in accordance with these Terms and Conditions.
6.1 Indemnification by Sponsor. Sponsor shall indemnify, defend, and hold harmless HMI and its affiliates, and each its respective officers, directors, employees, and agents from and against all third party claims, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) and damages (“Losses’”) arising out of or resulting from Sponsor’s: (i) breach of any representation or warranty contained in the Terms and Conditions, and the applicable Contract; (ii) breach or violation of any covenant or other obligation or duty, whether under the Terms and Conditions, the applicable Contract or applicable laws; or (iii) gross negligence or willful misconduct in connection with the applicable Terms and Conditions, and the applicable Contract; or (iv) infringement or misappropriation of intellectual property rights of a third party, including any patent, copyright, trade secret or trademark of such third party solely to the extent of, and in connection with, the use of Sponsor Materials provided by Sponsor in connection with the Program, Event and any related marketing collateral.
6.2 Indemnification by HMI. HMI shall indemnify, defend, and hold harmless Sponsor and its affiliates, and each of its respective officers, directors, employees, and agents from and against all Losses arising out of or resulting from HMI’s: (i) breach of any representation or warranty contained in the Terms and Conditions, and the applicable Contract; (ii) breach or violation of any covenant or other obligation or duty, whether under the Terms and Conditions, the applicable Contract or applicable laws; or (iii) gross negligence or willful misconduct in connection with the applicable Terms and Conditions and the applicable Contract; or (iv) infringement or misappropriation of intellectual property rights of a third party, including any patent, copyright, trade secret or trademark of such third party solely to the extent of, and in connection with, the use of HMI Materials provided by HMI in connection with the Event and any related marketing collateral.
7. REPRESENTATIONS AND WARRANTIES
7.1 Sponsor Representation and Warranties. Sponsor represents and warrants that: (i) Sponsor has the authority and rights necessary to enter into the applicable Contract and perform its obligations required thereunder; (ii) Sponsor shall comply with confidentiality obligations under this Agreement; (iii) Sponsor Materials and any other trademarks, branded material provided to HMI in connection with the Program, Event and any related marketing collateral, do not infringe or violate any patent, copyright, trademark, trade secret or other proprietary rights of any third party; and (iv) Sponsor has the right to grant the limited rights and licenses granted hereunder, including without limitation to the Sponsor Materials, without the need for any assignments, releases, consents or approvals not yet obtained.
7.2 HMI Representation and Warranties. HMI represents and warrants that: (i) it has the authority and rights necessary to enter into the applicable Contract and perform its obligations required thereunder; and (ii) HMI’s trademarks and content used in connection with the applicable Event (“HMI Materials”) do not infringe or violate any patent, copyright, trademark, trade secret or other proprietary rights of any third party.
8. LIMITATION OF LIABILITY; DISCLAIMER
8.1 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL HMI BE LIABLE TO SPONSOR, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), FOR ANY INDIRECT DAMAGES, INCLUDING INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF OPPORTUNITY, LOSS OF USE, OR LOSS OF REVENUE OR PROFIT, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH DAMAGES MAY HAVE BEEN FORESEEABLE, AND WHETHER OR NOT SUCH DAMAGES ARISE FROM NEGLIGENCE, EXCEPT AS MAY OTHERWISE ARISE UNDER APPLICABLE LAW. IN NO EVENT SHALL HMI’S MAXIMUM AGGREGATE LIABILITY TO SPONSOR, UNDER ANY CIRCUMSTANCE, EXCEED THE AMOUNT ACTUALLY PAID BY SPONSOR UNDER THE APPLICABLE CONTRACT.
8.2 DISCLAIMER. THE PROGRAM AND ASSOCIATED EVENT, IF APPLICABLE, IS PROVIDED “AS IS” AND “AS AVAILABLE” AND HMI WILL NOT CONSIDERED TO BE IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND HMI’S CONTROL. EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT, HMI MAKES NO REPRESENTATIONS OR WARRANTIES, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED, STATUTORY WARRANTIES OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, INCLUDING, IF APPLICABLE, THE NUMBER OF ATTENDEES AT AN EVENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT HMI MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
9.1 The term of an applicable Contract will commence on the date of the last signature therein and shall continue until the completion of Program, unless otherwise terminated in accordance with the Terms and Conditions (“Term”).
10.1 Sponsor may terminate the Contract at any time by providing written notice, however, Sponsor remains responsible for full payment of the Contract.
11. FORCE MAJEURE
11.1 Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the applicable Contract, for any failure or delay in fulfilling or performing any obligations under the applicable Contract, when and to the extent such failure or delay is caused by or results from the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency (including pandemics and/or health related emergencies); (h) disruption, interruption or failure of power or telecommunication or digital transmission links, Internet slow-downs or failures, or other such transmission failure; and (i) other events beyond the control of the party impacted by the Force Majeure Event. In the unlikely event HMI transitions an in-person or a hybrid Event to a fully virtual Event, due to circumstances of a Force Majeure Event, the Sponsor may transfer the payments already paid for the Program(s), to the virtual event, or terminate the Agreement and Sponsor shall be refunded all payments made up to such date of termination, in full satisfaction of all liabilities of HMI to Sponsor. HMI reserves the right to cancel or rename the Event and/or Program or change the dates on which the Event is held. In the event HMI cancels or reschedules the Event and/or Program for reasons other than a Force Majeure Event, HMI shall refund to Sponsor any amounts already paid for the Program, without set-off for costs and expenses incurred. Except as stated herein, HMI shall have no other obligation to refund the Sponsor any payments.
12.1 Relationship. Nothing in this Agreement shall be deemed to establish a relationship of a principal and agent between the HMI and Sponsor, nor any of their agents or employees for any purpose whatsoever, nor shall this Agreement be construed to constitute the Parties as partners, joint venturers, co-owners, participants in a joint enterprise, legal association or arrangement, which would impose liability upon one Party for the act of failure of the other Party. Neither Party has the power to bind the other Party in any manner whatsoever by virtue of this Agreement.
12.2 Governing Law. The validity, interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of New York, without giving effect to the principles of conflicts of law that may require the application of the laws of another jurisdiction. The Parties hereby submit to the exclusive jurisdiction and venue of the federal and state courts of New York County, New York and waive all defenses of lack of jurisdiction and inconvenient forum with respect to such courts.
12.3 Assignment. No Party’s rights or benefits under the applicable Contract may be assigned without the prior written consent of all other Parties to this Agreement, which consent may be withheld for any or no reason.
12.4 Conflicts. If there is a conflict between these Terms and Conditions and the Contract, these Terms and Conditions shall prevail.
12.5 Remedies. Except where this Agreement expressly provides exclusive remedies, all rights and remedies of either Party (including termination rights) are cumulative. Each party agrees that monetary damages alone would not be an adequate remedy, and therefore a Party may be entitled to seek injunctive relief if the other Party materially breaches any license restrictions or confidentiality provisions in this Agreement.
12.6 Amendments and Waivers. No modifications of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the Parties to this Agreement. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.
12.7 Entire Agreement. This Agreement constitutes the entire agreement of the Parties and shall not be modified, interpreted, amended, waived, or revoked except by written instrument signed by all Parties. This Agreement supersedes and replaces all prior agreements, discussions, and representations on the subject matter discussed herein, all of which are merged into this Agreement. None of the Parties are entering into this Agreement in reliance on any oral or written promises, inducements, representations, understandings, interpretations, or agreements, other than those contained in this Agreement.
12.8 Survival. The provisions of these Terms and Conditions concerning confidentiality, indemnity, ownership of materials, and governing law, and any other provision which by its terms specifically shall so state, together with any obligations accrued hereunder at the time of termination or expiration, shall survive the termination or expiration of the applicable Contract.