These SPONSORSHIP AGREEMENT TERMS AND CONDITIONS (these “Terms and Conditions”) are incorporated into the Sponsorship Agreement executed by and between NANOG, INC.,a Delaware corporation (“Company”), and the Sponsor set forth in such Sponsorship Agreement(“Sponsor”). These Terms and Conditions refer to the Company and the Sponsor as the “Parties” and may refer separately to either as a “Party.”
- The Company’s Obligations. The Company will provide the Sponsor with the sponsorship opportunity set forth in the Sponsorship Agreement. The Company does not make, and specifically disclaims, any representations or warranties regarding the success or failure of such sponsorship opportunity for the Sponsor.
- The Sponsor’s Obligations.
2.1. Unless otherwise set forth in the Sponsorship Agreement, promptly following execution and delivery of the Sponsorship Agreement, the Sponsor shall pay the sponsorship costs to the Company as set forth in the Sponsorship Agreement by check or wire transfer of immediately available funds.
2.2. The Sponsor represents and warrants to the Company that the Sponsor has the legal right to use the logo, artwork, or other advertising and marketing material provided by it to the Company.
2.3. The Sponsor hereby grants to the Company a limited, temporary license to use any such logo, artwork, or other advertising and marketing material as set forth in the Sponsorship Agreement.
2.4. The Sponsor will indemnify and hold harmless the Company for any third party claims for breach of any intellectual property rights which might be made against the Company for using any such logo, artwork, or other advertising and marketing material.
3.1. Sponsor will indemnify and hold harmless Company, its officers, directors, members, employees, and agents, from and against any claims, actions or demands, including, without limitation, all reasonable attorney’s fees, due to or resulting from Sponsor’s breach of these Terms and Conditions, the Sponsorship Agreement, or Sponsor’s (or its agent’s) willful misconduct, fraud, negligence or gross negligence.
3.2. Company will indemnify, and hold harmless Sponsor, its officers, employees, and agents, from and against any claims, actions or demands, including, without limitation, all reasonable attorney’s fees, due to or resulting from Company’s breach of these Terms and Conditions, the Sponsorship Agreement, or Company’s (or its agent’s) willful misconduct, fraud, negligence or gross negligence.
- Limitation of Liability.
4.1. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY SPECULATIVE SPECIAL, INCIDENTAL, INDIRECT, REMOTE, OR CONSEQUENTIAL DAMAGES ARISING FROM SUCH PARTY’S PERFORMANCE OR FAILURE TO PERFORM.
4.2. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS OR THE SPONSORSHIP AGREEMENT, THE COMPANY’S ENTIRE LIABILITY TO SPONSOR OR OTHERWISE ARISING IN CONNECTION HEREWITH WILL NOT EXCEED THE AMOUNT PAID TO COMPANY BY SPONSOR PURSUANT TO THE SPONSORSHIP AGREEMENT AND EVENT WHICH GAVE RISE TO SUCH LIABILITY.
- Order of Precedence. If there is a conflict between any provision of these Terms and Conditions and any provision of the Sponsorship Agreement, then the Sponsorship Agreement will govern in all respects.
- Status of Company. Nothing contained in these Terms and Conditions should be construed as creating an employment relationship, partnership, or joint venture between Sponsor and Company. Company is an independent contractor and not an employee of Sponsor.
- Notices. Each notice, demand, request, consent, or other communication required or desired to be given or made under a Sponsorship Agreement or these Terms and Conditions must be in writing and will be effective and deemed to have been received (a) when delivered in person, (b) five (5) days after having been mailed by certified or registered United States mail, postage prepaid, return receipt requested, or (c) the next business day after having been sent by a nationally recognized overnight mail or courier service, receipt requested, in each case to the address of the Party set forth in the Sponsorship Agreement.
- Entire Terms and Conditions. These Terms and Conditions, as well as any applicable Sponsorship Agreement, contain the entire understanding and agreement between the Parties and will not be modified, amended, or assigned except as set forth below. Any attempted modification, amendment, or assignment in violation of this section is void.
- Amendment. These Terms and Conditions may be amended, supplemented, or modified from time to time by the Company in a written instrument as necessary in its good faith business judgment.
- Time is of the Essence. Time is of the essence in each Party’s performance of all obligations under these Terms and Conditions and the Sponsorship Agreement.
- Force Majeure. Either Party’s performance of any part of these Terms and Conditions or the Sponsorship Agreement shall be excused to the extent that such performance is hindered, delayed, or made impractical by: (a) the acts or omissions of the other party; (b) flood, fire, strike, war, or riot; (c) any other cause (whether similar or dissimilar to those listed) beyond the reasonable control of that party. Upon the occurrence of any such event(s), the Party whose performance is so affected shall notify the other Party of the nature and extent of the event(s) so that decisions to mitigate the negative effect(s) of such event(s) may be promptly made.
- Governing Law. These Terms and Conditions, as well as the Sponsorship Agreement, will be governed by and construed in accordance with the laws of the State of Delaware without regard to, or giving effect to, the choice of law rules of any jurisdiction.
- Dispute Resolution.
13.1. Mediation. If a claim, disagreement, or dispute arises or exists between the Parties or in connection with the interpretation or performance of the Sponsorship Agreement (hereinafter, “Disagreement”), then either Party may require the other to submit the reasons for its position(s), in writing, and then enter into good faith negotiations to attempt to resolve the Disagreement. If such Disagreement cannot be settled by good faith negotiations within thirty (30) days, then either Party may elect in writing to submit the Disagreement to mediation under the Commercial Mediation Rules of the American Arbitration Association. If either Party so elects, then the other Party shall submit to mediation. The mediator shall be chosen by the Company’s outside counsel, if any, or, if the Company has no outside counsel, then by its certified public accountant, within ten (10) days after the written notice of the election is made. Such mediation shall be held within twenty (20) miles of Ann Arbor, Michigan, unless otherwise agreed. The mediator shall not have the authority to impose a settlement but will attempt to assist the Parties in reaching a satisfactory resolution of the Disagreement. Upon (a) termination of the mediation by the mediator without a mutually satisfactory resolution of the Disagreement, or (b) termination of the mediation by either Party following thirty (30) days from the engagement of the mediator, the Parties shall proceed to binding arbitration as set forth below. The mediator shall end the mediation whenever, in the mediator’s reasonable judgment, further efforts at mediation would not contribute to a resolution of the Disagreement.
13.2. Binding Arbitration. If the Parties are unable to resolve a Disagreement pursuant to the mediation set forth above, then the Parties shall submit the Disagreement to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then pertaining, unless the parties mutually agree otherwise, and pursuant to the following procedures: (i) The costs and fees of the arbitration, including reasonable attorney’s fees, shall be allocated by the arbitrator; (ii) The award rendered by the arbitrator shall be final and judgment may be entered in any court having jurisdiction thereof; and (iii) The existence and the resolution of the arbitration shall be kept confidential by the Parties and by the arbitrator. The arbitrator shall be chosen by the Company’s outside counsel, if any, or, if the Company has no outside counsel, then by its certified public accountant. Such arbitration shall be held within twenty (20) miles of Ann Arbor, Michigan, unless otherwise agreed. The arbitrator shall render his decision within thirty (30) days of the hearing. The decision of the arbitrator shall be final. The arbitrator shall have exclusive jurisdiction and authority to resolve all disputes regarding the validity and interpretation of this Agreement.
13.3. Costs. Judgment upon any award rendered may be entered in any court having jurisdiction over the Party against whom such award is rendered. Any notice served in connection with any such arbitration or entry of judgment may be served in such manner as may be permitted by the rules of said court.
13.4. Jury Waiver. The Parties hereby acknowledge that any controversy which may arise under these Terms and Conditions or the Sponsorship Agreement would involve complicated and difficult factual and legal issues, accordingly the parties intentionally waive any right to request a jury trial in any action arising out of, relating to, or concerning these Terms and Conditions or the Sponsorship Agreement.
- Attorney’s Fees and Costs. Should any Party breach these Terms and Conditions or the Sponsorship Agreement, the substantially prevailing, non-breaching Party will be entitled to an award of its costs and reasonable attorneys’ fees expended in any action to seek injunctive or other relief based upon the terms of these Terms and Conditions.
- Severability. If any provision of these Terms and Conditions is invalidated by a court of competent jurisdiction, then all of the remaining provisions of these Terms and Conditions will continue unabated and in full force and effect.
- No Third-Party Beneficiaries; No Waiver. These Terms and Conditions do not confer upon any person other than the Parties any rights or remedies whatsoever. No delay on the part of either Party or failure by a Party to exercise any power, right or remedy under these Terms and Conditions will operate as a waiver thereof, nor will any single or partial exercise of any power, right or remedy preclude other or further exercises thereof, or the exercise of any other power, right or remedy. The rights and remedies in these Terms and Conditions are cumulative and not exclusive of any rights or remedies which either Party would otherwise have.
- Opportunity to Consider and Confer. Each Party has had the opportunity to read, study, consider and deliberate upon these Terms and Conditions and the Sponsorship Agreement, has had the opportunity to consult with counsel, and fully understands and is in complete agreement with these Terms and Conditions and the Sponsorship Agreement. Each Party will bear its own costs with respect to the preparation, revision, and execution of these Terms and Conditionsand the Sponsorship Agreement.