TERMS AND CONDITIONS
The following terms and conditions are expressly made part of this Agreement, and the Parties hereby agree to the same:
1. Performance. Vendor shall at all times during the Event perform the Services in a professional and workmanlike manner and be courteous towards all attendees of the Event; and Vendor shall cause its agents, employees, and representatives to act accordingly.
2. Use of Subcontractors. Vendor may, at its own expense, utilize subcontractors in connection with its performance of the Services (“Subcontractor(s)”); provided, however, that Vendor is responsible for all acts, omissions, and errors of such Subcontractors; provided further that all representations, warranties and covenants made by Vendor, and the duties and obligations of Vendor with respect to this Agreement, shall apply equally to such Subcontractors, and Vendor shall be responsible for the proper adherence to and performance of those representations, warranties, covenants, duties, and obligations by such Subcontractors.
3. Grant of Rights and Ownership. Vendor acknowledges that Vendor, Vendor’s agents, employees, representatives, and Subcontractors, and/or their respective performances may be photographed, filmed, recorded, and/or interviewed during the Event. Vendor hereby irrevocably grants, and shall cause Vendor’s agents, employees, representatives, and Subcontractors to irrevocably grant (in a signed writing if necessary), Company permission to perform such activities. Vendor further agrees that Company is the exclusive owner of all past, present, and future rights, titles, and interests in and to the resulting products of such activities (including, without limitation, all copyrights and contributions in and to such resulting products) (collectively, the “Works”), if any, as “works made for hire;” agrees that if any such rights, titles, or interests in or to the Works are not “works made for hire,” then Vendor hereby irrevocably assigns, conveys, and otherwise transfers all such rights, titles, and interests to Company; and shall cause Vendor’s agents, employees, representatives, and Subcontractors to convey (in a signed writing if necessary) the same rights, titles, and interests in and to the Works. Finally, Vendor grants, and shall cause Vendor’s agents, employees, representatives, and Subcontractors to grant (in a signed writing if necessary), the irrevocable, transferable, sub-licensable, royalty-free, fully-paid, and universe-wide license to use the name, likeness, image, statements, and biographical information of Vendor and Vendor’s agents, employees, representatives, and Subcontractors, whether in original or modified form, in connection with the Works for any purpose and in any manner as Company may choose.
4. Additional Grant of Rights. Vendor grants Company the right on a nonexclusive, royalty-free and world-wide basis to use Vendor’s names, trademarks, service marks, and logos (collectively, the “Vendor Marks”) in connection with the promotion and merchandising of the Event (including, without limitation, in advertisements, brochures, and merchandise for the Event). In connection therewith, and upon request, Vendor will provide Company with all necessary pre-approved logos and other information necessary for proper reference and representation of the Vendor Marks. In further connection therewith, and upon written request, Company shall post all reasonable proprietary notices for the Vendor Marks (e.g., ™ and ®). Vendor reserves the right upon written request to Company, but not the obligation, to review and approve or disapprove any particular uses of the Vendor Marks by Company under this Agreement (such approval or disapproval not to be unreasonably withheld or delayed).
5. Public Health, Safety and Sanitation. Vendor shall not distribute, sell, market, or otherwise use any food or beverage items at the Event that have been prepared at home or in a non-sanitary environment. Vendor shall store all meat and other food products in accordance with all applicable local, state, and federal laws, rules, regulations, and ordinances. Vendor shall discharge all wastewater at the Event into an approved sanitary sewer or holding tank. Finally, Vendor shall comply with all applicable local, state, and federal laws, rules, regulations, and ordinances concerning public health, safety and sanitation in relation to the Services and the Event (including, without limitation, all laws concerning the preparation of food and beverages, all laws concerning the service or sale of alcoholic beverages to minors and intoxicated persons, and all laws concerning the disposal of trash and other waste products).
6. Vendor Representations, Warranties, and Covenants. Vendor represents, warrants, and covenants to Company that:
a. Vendor has carefully read and understands the terms and conditions of this Agreement in its entirety;
b. Vendor has the full and unencumbered right and authority to enter into and perform this Agreement, and to grant and covey the designated rights, titles, interests, and privileges under this Agreement;
c. Vendor has obtained and shall at all times comply with all licenses, authorizations, approvals, consents, and permits required by all applicable local, state, and federal laws, rules, regulations, and ordinances, as well as by all applicable third-party rights owners, to perform the Services at and in relation to the Event (including, without limitation and as applicable, the distribution, sale, marketing, and other use of all products offered by Vendor), including, without limitation and by way of example only, all applicable food service and sale licenses, non-alcoholic beverage service and sale licenses, all alcoholic beverage service and sale licenses, all musical composition, sound recording, film, patent, and other intellectual property licenses, and all work permits;
d. Vendor shall at all times comply with all applicable local, state, and federal laws, rules, regulations, and ordinances, as well as all third-party agreements, when performing its Services at and in relation to the Event (including, without limitation and as applicable, the distribution, sale, marketing, and other use of all products offered by Vendor);
e. No products, services or materials prepared, reproduced, distributed, publicly performed, publicly displayed, transmitted, sold, licensed, marketed, or otherwise used by or on behalf of Vendor at or in connection with the Event infringe upon or violate the privacy, publicity, or proprietary rights of any person or entity, or defame or disparage any person or entity;
f. In the event a Subcontractor fails to perform as specified under this Agreement, then such non-performance shall constitute a material breach of this Agreement on the part of Vendor, and Vendor shall be personally liable to Company for said material breach;
g. No obligation, disability, agreement, or adverse claim exists that may restrict the performance of its obligations under this Agreement; and
h. Vendor understands and acknowledges that Company has not made, and that Vendor is not relying on Company having made, any express or implied representations, statements, warranties, conditions, or covenants with respect to the subject matter of this Agreement, except for those which are expressly stated in this Agreement.
7. Indemnification. Vendor shall indemnify, release, and hold harmless Company and Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, successors, assigns, transferees and permitted licensees from and against any and all liabilities, claims, suits, demands, proceedings, judgments, and other actions brought by third parties against any such indemnitees, together with any damages, fines, penalties and expenses (including reasonable costs and outside attorneys’ fees) incurred by any such indemnities, which are the result of any act, omission, or error of Vendor, a Subcontractor(s), or their respective agents, employees, representatives, parents, subsidiaries, successors, assigns, transferees, or permitted licensees in connection with the breach of any of Vendor’s representations, warranties, and/or covenants set forth this Agreement.
8. Insurance. Vendor shall, at its sole expense, obtain and maintain the following types of insurance in connection with the Event, and shall name Company as an additionally insured party thereto: (a) Comprehensive commercial general liability insurance, including coverage for
$1 million each occurrence limit
$2 million general aggregate limit
$2 million products and completed operations
$1 million personal and advertising injury
$1 million fire damage limit (may be difficult for smaller vendors to get this limit)
Liquor Liability: $5,000,000 per occurrence/aggregate (only required if serving liquor at the event; may be difficult for smaller companies to provide this limit)
Automobile Liability covering all owned, hired, leased, borrowed and non-owned automobile used in performing services: $1,000,000 combined single limit
Workers’ Compensation as required by law (statutory limits) including Employers Liability with limits of $1,000,000 per occurrence.
Upon request, Vendor shall provide Company with certificates of insurance evidencing Vendor’s compliance with such insurance requirements.
9. Take Down. Company shall have the unencumbered right, in its sole discretion and without penalty, but not the obligation, to require Vendor to immediately disable or take down any content published by or at the direction of Vendor at or in relation to the Event (including, without limitation and by way of example only, text, photographs, advertisements, and music) or to immediately cease performing any of the Services at the Event (including, without limitation, the sale of any products) whenever Company believes the same is or will be (a) injurious to Company’s or the Event’s image, brand or business; (b) objectionable or illegal (including, without limitation, content that is explicit, indecent, obscene, infringing, defamatory, disparaging, deceptive, misleading, untruthful or fraudulent, activities which violate contest, gaming, or sweepstakes laws, and activities which may injure persons or property); or (c) result in a breach of Vendor’s representations, warranties, or covenants under this Agreement.
10. Public Announcements. Vendor shall not issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or the Event, except as expressly permitted under this Agreement or with Company’s prior written consent.
11. Limitation of Liability. If the Event is cancelled or postponed by Company for any reason or no reason, or by reason of a Force Majeure Event (as defined below), then Company’s liability to Vendor for such cancellation, if any, shall not exceed, and shall be limited to, the total amount of fees paid by Vendor to Company under this Agreement, if any.
12. Release. Vendor acknowledges and agrees that its participation, and the participation of Vendor’s agents, employees, representatives, and Subcontractors, is done at their own risk. Accordingly, Vendor hereby generally releases and discharges Company from, and shall cause (in a signed writing if necessary) Vendor’s agents, employees, representatives, and Subcontractors to generally release and discharge Company from, any and all liabilities, damages (including, without limitation, direct, indirect, punitive and special damages, costs, attorney fees, lost profits, lost business opportunities, and insurance expenses), claims, demands and actions whatsoever which any of them have or may have against Company for infringement, dilution, violation of the rights of privacy or publicity, defamation, disparagement, personal injury, emotional injury, injury to image or reputation, property damage, negligence, recklessness, products liability, discrimination, indemnification, contribution, reimbursement, and/or any other legal theory arising from or in connection with any of the Works, Vendor’s performance of the Services, and/or Vendor’s participation in the Event.
13. Right to Refuse Service. Company reserves the right to refuse service of any kind and nature to any person or entity at or in connection with the Event.
14. No Assignment or Delegation. Vendor shall not assign, delegate or otherwise transfer any of its rights, duties, or obligations under this Agreement without Company’s prior written consent in each instance.
15. Independent Contractor Relationship. Company is interested only in the results of the Services delivered by Vendor under this Agreement; thus, the manner and means of achieving such results are subject to Vendor’s sole control. With respect to one another, the Parties are independent Vendors for all purposes. There is no relationship of agency, fiduciary, employment, franchise, partnership, or joint venture between the Parties. Vendor has no authority to bind Company or to incur any obligations on Company’s behalf. Except as expressly set forth in this Agreement or otherwise agreed to by both Parties, Vendor is responsible for all costs and expenses incident to completing the Services, and Vendor shall provide its own supplies and equipment for performing the Services. Vendor acknowledges and agrees that it is not entitled to any employee benefits of Company (including, without limitation, health insurance, workers’ compensation insurance, unemployment compensation, disability, liability, or any other type of insurance).
16. Governing Law; Forum. This Agreement, the Parties’ relationship, and all disputes, controversies and claims arising from or in connection with the subject matter of this Agreement (whether grounded in contract, tort, statute, law, or equity) shall be governed, interpreted, construed and enforced in accordance with the laws of the State of Texas and applicable federal law, regardless of its place of execution, its place of performance, and any conflicts of law analysis. The Parties hereto irrevocably submit to the exclusive personal jurisdiction and venue of Dallas County, Texas for the resolution of all disputes, controversies and claims arising from or in connection with this Agreement or its subject matter, and agree that it is not an inconvenient venue or forum.
17. Force Majeure. No Party shall be liable or deemed in default for any delay, failure or interruption in performance under this Agreement resulting directly or indirectly from any acts of God, civil or military authority, acts of the public enemy, war, acts of terrorism, riots, civil disturbances, labor strikes, insurrections, accidents, fires, explosions, earthquakes, floods, the elements or any other force majeure event (collectively, “Force Majeure Event”). Each Party agrees to address or minimize the impact of any such Force Majeure Event by taking reasonable measures to ensure the complete performance of its obligations under this Agreement.
18. Further Assurances. Each Party shall execute and deliver all further documents and instruments, and shall do and perform all further acts, reasonably necessary or appropriate and/or reasonably requested by the other Party to enable the other Party to exercise and perform its respective rights, privileges, duties and obligations under this Agreement.
a. Execution. This Agreement may be executed in multiple counterparts and exchanged by personal delivery, mail, fax, and/or e-mail, each of which shall be an original and all of which, taken together, shall be one instrument.
b. Headings. Section headings are inserted for reference and convenience only and in no way define, limit or describe the scope or intent of this Agreement.
c. Severability. If any term or condition of this Agreement is deemed invalid or unenforceable by a court of law with binding authority, then the remaining terms and conditions shall not be affected, and said court of law shall reform the invalidated or unenforceable term or condition to the maximum extent permitted by law that is consistent with the original intent of this Agreement.
d. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties and supersedes any prior agreements or understandings made between them (orally or in writing), if any, relative to the subject matter of this Agreement. This Agreement cannot be amended, modified, supplemented or cancelled, in whole or in part, except in a writing signed by all the Parties. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors, assigns, and transferees.