HomeMy WebLinkAboutC18-182 General Motors LLCGENERAL MOTORS LLC
PROMOTIONAL AGREEMENT
This Promotional Agreement (together with all Exhibits, Schedules, and document(s) subsequently
incorporated, collectively, the "Abrreement") is between General Motors LLC, a Delaware limited liability
company with a principal place of business at I 00 Renaissance Center, Detroit, Michigan 48265-1000
("GM"), and EAGLE COUNTY, COLORADO, a body corporate and politic with a principal place of
business at 500 Broadway, Eagle, CO 81631 ("Promoter"). The parties agree as follows:
I.Promotional Considerations
2.
a.From GM. GM will provide to Promoter the consideration listed in Exhibit A.
b.From Promoter. Promoter \viii provide to GM the consideration listed in Exhibit B.
c.Safety. The parties acknowledge and ah>ree that safety is a fundamental priority critically
important to both parties. Should either party conduct their obligations under this Agreement
in a manner inconsistent with consumer safety as reasonably determined by the other party,
such action will be considered a breach for which Section 8(a) of this Agreement will apply.
Intellectual Property
a.License of Marks. Promoter and GM 3Ckno,y;ledge':'that each party owns certain names,
trademarks, service marks, copyrights and othei"intei!ectual property ("Marks"), and owns or
has certain merchandising rights:in,and to the'Marks, and all goodwill associated with orsymbolized by the Marks. IJ is ·Und.�rs'too4Jfiat in promoting Promoter's activities, Promoter
and GM may make various references to the activities and may display the Marks of Promoter
and GM, and pictures of the activities:' Each party hereto grants to the other a nonexclusive,
nontransferable license tb use its Marks during the term of this Ah>reement and subject to the
terms and conditions hereinaftei'set forth, solely in connection with advertising and promoting
any event or·acfivity inci_deTTi"al hereto.
\ i;!Y
b.Approval of Mar�. Each party must a&,rrec in writing as to the form and content of any
promotional cir"'li(h·ertising materials and the media in which such materials are to be used prior
to their use, which approval the part ies will not unreasonably withhold; and such use may be
subject to such reasonable conditions as either party may impose, including, but not limited to,
conditions affording each party adequate protection of its Marks.
c.Cessation of Use. Upon tennination or expiration of this Agreement, both parties will cease all
use of the Marks of the other party as soon as practicable, but in any event within thirty (30)
days unless the particular media which has been approved requires a longer lead time, but in
no event longer than ninety (90) days.
d.No Challenge of Marks. Neither party will impugn, challenge or assist in any challenge to the
validity of the other party's Marks, any registrations thereof, or the ownership thereof.
e.Protection of Marks. Each party will be solely responsible for taking any actions as it deems
appropriate to obtain trademark, service mark, or copyright registration for its respective
Marks. All uses of or references to the Marks will inure to the benefit of the respective owner,
C18-182
and all rights with respect to the Marks not specifically !,'fanted in this Agreement will be and
are hereby reserved to the respective owner.
f.Reservation of Ril!hts, Neither party is grante d any right or license under this Agreement to
sell, or otherwise distribute for sale, any promotional or advertising materials, or items related
thereto. If a party desires to sell, or distribute for sale, any such materials or other
merchandising or novelty items bearing the names, trademarks, copyrights, or other intellectual
property of the other party, then it will request pennission to do so from the other party, and if
granted, the parties will negotiate in good faith n separate licensing a&-ireement covering such
materials or items before they may be sold or distributed for sale.
3.Consumer Information and Confidentiality
a.No Customer Lists. Promoter and GM acknowledge and agree that there will be no transfer of
customer lists, databases, or any other personally identifiable infonnation relative to thisAgreement.
b.No Publication or Disclosure. Each party a1,'1'ees not to publish, or help anyone else publish,
anything whatsoever that references the other party or the products, goods, or services of theother party, except with the prior written consent of the other party:
4.Exclusivity of Performance
During the Tenn, Promoter will not conduct or pariiciptlte in any promotional activities with any
other motor vehicle or component_ parts manufacturer, distributor, dealer, or service provider
without the prior written approval Of GM. Pr9motcr also represents and warrants that no other
motor vehicle or component p.irts marfofoCtuI'er, distributor, dealer, or service provider will be
involved with the activities d�scribcd in thi; Agreement without the prior written approval of GM.
5.Term and Right of First ilefns;!. .
a.Tenn. This Agreem�nt'begins on the last date on the signature page and ends on June 10, 2018
(the "Tenn''}. If the Tenn is longer than one year, GM can tenninate this A,brreemenl etTectiveDecember 31 OrllOy year by giving Promoter written notice of termination before October I of
that year.
b.Ri2ht of First Refusal. If Promoter intends to conduct activities similar to those set forth inExhibit B at any time during the full calendar year following the end of the Tenn, Promoter
must provide GM a written proposal for GM to participate in those activities before, or within
90 days after, the expiration or tennination of this Agreement. Promoter will provide this notice
to GM at least sixty (60) days prior to the commencement of such activities. Within 30 days of
receiving the proposal, GM will advise Promoter in writing whether it accepts the tcnns of the
proposal. If GM rejects the tenns of the proposal and the parties cannot negotiate mutually
acceptable terms, then Promoter will be free to negotiate with others. However, Promoter will
not offer tenns to others which are materially different than those previously offered to GM
without first offering those different tenns to GM.
6.Indemnification
a.GM. GM agrees to indemnify and hold harmless Promoter, its officers, directors, agents, andemployees, from and against any and all Claims arising out of: (1) GM's, its directors',
officers 1, employees', agents', or subcontractors' breach of any representation, warranty, or
obligation under this A&,rreement; (2) the misconduct or negligence of GM, its directors,officers, employees, agents, or subcontractors; or (3) Promoter's use of GM's Marks asauthorized by this Agreement.
b.Survival. The obligations to indemnify contained in this Section will survive the expiration or
tennination of this A&:rrcement.
7.Insurance
a.Kinds oflnsurance and Minimum Limits. During the Tenn, ProrpOfer will maintain, at its own
expense, the following kinds of insurance and_piinim�m� lit1}�ts-?'
-,,.,. -:J
K;nd of insurance l.Commercial General Liability(including contractual liabUity).,
'
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2. If spectator events are ideritifiecl on
Exhibit B1 Pro;otef will maihtain spectator's llabilitfinst,fa;ce (either includecfin the.Commercial General Liability or in J,sep�te policy) ,, ,:;
3.Workers Compensation
A,Jint'nwm Limits ·$1,-0oo,ooo per occurrence combined single;>'limit for personal injury and property
damage
$5,000,000 per occurrence combined single limit for personal injury and property damage
Statutory (for all states of operation)
including Employer's Liability with limits of at least $500,000
b.Certificate. Before it begins any activities described in this Agreement, Promoter will furnishGM with a certificate that: (I) indicates the applicable coverages; (2) names GM as anadditional insured (except Workers Compensation); (3) states that such insurance is primary incoverage to any other insurance which may be available to GM; and (4) provides at least 30
days• prior written notice to GM of cancellation, modification, or material change to the policy.
The certificate will be in a form acceptable to GM and must be underwritten by an insurer
satisfactory to GM.
c.No Release of Obligations. Neither Promoter's purchase of appropriate insurance coverage northe furnishing of the certificate will release Promoter from its obligations or liabilities under
this Agreement.
8.Termination
a.Breach. If a party (I) repudiates or breaches any of the terms of this Agreement, or (2) fails tomake progress so os to endanger timely and proper completion of its performance, the other
party may terminate this Agreement, without liability, if the defaulting party does not correct
the breach or failure within ten (I 0) days, or a shorter period if commercially reasonable, after
receipt of written notice specifying the breach or failure.
b.lnsolvcncv. Either party may tenninate this A!::,rrecment immediately, without liability to theother party, if: (1) the other party is insolvent or is the subject of the filing of any petition under
any bankmptcy, reorganization, or receivership law; (2) an assi1,.'llment is executed for the
benefit of the other party's creditors; or (3) a trustee or receiver is appointed for the other party's
business or assets or any part thereof; unless such petition, assJgnment, or appointment iswithdrawn or nullified within 15 days of such -�yent.
c.Return of Funds. If this A1=-rrecment is terminated in accordance with Sections 5, 8, or 9, (i)
Promoter will promptly: (I) provide GM a ·pro rata · refund for services not performed by
Promoter; and (ii) each Party \\'.ill cease the _µse of the other party's Marks as soon as is
practicable, but in uny event within.'ninety,(90) days. These remedies arc in addition to any
other rights or remedies that either party may have at law or in equity. Neither party will be
liable to the other for incidental, COJ}§e{1uential, or punitive damages arising out of a breach ofthis Agreement.
9.Force Majeu�e
Any delay or failure o(either party to perform its obligations under this Agreement will be excused
if it is caused by iin'ivent beyond its reasonable control and without its foult or negligence. This
will include, but is not limited to, acts of God, actions by governmental authority, fires, floods,
windstonns, explosions, riots, natural disasters, wars, sabotage, terrorist acts or labor problems.
The party claiming force majeurc must promptly notify the other party of the event, the anticipated
duration of the event, and the steps being taken to remedy the delay or failure. If the event continuesfor more than 30 days (or a shorter time if reasonable under the circumstances), either party may
tenninate this Agreement.
I 0. Governing Law and Scvcrability
This Agreement will be governed by and construed according to the laws of the State of Colorado,
excluding any laws which direct the application of laws of any other jurisdiction. If any tenn of
this Agreement is detennined to be invalid or unenforceable under any statute, regulation,
ordinance, executive order, or other rule of law, that tenn will be considered refonned or deleted,
but only to the extent necessary for compliance, and the remaining provisions of this A1,JJ'eement
will remain in full force and effect.
II.Taxes
a.Tax Cooperation. The parties will work together in good faith to generate tax efficiencies and
to minimize both Direct Taxes and Transactional Taxes ( defined below). Promoter will take all
steps to ensure that it directly invoices the GM entity that receives the services, and it will work
with GM to ensure delivery locations are correctly invoiced by service. If GM is audited or
assessed any tax related to this Agreement, Promoter will cooperate with GM and make
available to GM relevant documents, records, or infonnation reasonably requested, file any
relevant tax returns, and contest the imposition of any Direct or Transactional Taxes or any
related interest or penalty.
b.Direct Taxes. Promoter is responsible for its own Direct Taxes and may not charge or recover
Direct Taxes from GM. If a jurisdiction requires GM to withhold Direct Taxes from GM's
payment to Promoter, GM will provide Promoter with appropriate documentation and
Promoter will apply the Direct Tax withholding as a payment from GM to Promoter. In no
event will GM "b'TOSs-up" any payment for withheld Direct Taxes. "Direct Tax" means any
tax, fee, surcharge, or exaction of any other type that is legally imposed on Promoter by a tax
authority, including any tax relating to Promoter's income, gross receipts (including Ohio's
Commercial Activity Tax), capital, net worth, franchise, privilege, property, or any
employment-related tax imposed on Promoter.
' ,:,/; c.Transactional Taxes. The price for this Agreement, inplu§ifi'g any services subcontracted by
Promoter, docs not include Transnctional.T;ixes that P�9nioter is legally required to charge on
invoices issued to GM. GM will nq/ lie resp'onsi!1)e for any Transactional Taxes unless (I)
Promoter first provides GM with Ji written expla,pation of the price of the Agreement and all of
GM's related costs (including Tranifaction�L,Taxes), and (2) GM approves of the price and
related costs prior to execution of this AgreCfuent. "Transactional Taxu means any V[ilue�added
tax, goods and services tax, tirr_noyei:' J�', sales tax, use tax, excise tax, or consumption tax that
is legally imposed either jointly or"severally on GM relating to the services provided to GM
under this A&rreemCnt/I'rans�ctf�nal Taxes do not include any tax that that is statutorily
imposed on Promoter arjsinlfrom its consumption of any product or services.
'.i '., ,�
d.Compliance and n'oc�mentation. Promoter will separately state Transactional Taxes on its
invoices to GM.Jri" accordance with local tax law. Promoter will collect such Transactional
Taxes from GM and remit them to the relevant tax authorities unless (I) GM has provided
Promoter with documentation that Promoter is exempt from collecting Transactional Taxes
from GM (such as a direct pay pennit), or (2) the law requires GM to remit Transactional Taxes
directly to the tax authority. If an invoice is not legally compliant, Promoter will be responsible
for curing that invoice, and the deadline for payments subject to the re-invoicing procedure will
be restarted in accordance with GM's commercial payment practices. Promoter will reimburse
GM in a timely manner for any Transactional Taxes erroneously paid by GM.
12.Compliance with Laws
a.General. In performing its obligations under this A,grecment, each party warrants and agrees to
comply fully with and to cause its directors, officers, employees, agents, or subcontractors, or
any person acting on its behalf, to comply fully with all applicable laws and regulations of all
appropriate jurisdictions, including without limitation the anti�bribery laws and regulations in
all relevant jurisdictions, the U.S. Forei&'ll Conupt Practices Act, and the U.K. Bribery Act.
b.Fraud. I.>romoterrepresents and warrants tlrnt neither Promoter, nor any of its owners, directors,
officers, employees, agents, or subcontract ors, have been subject to any investigation or been
convicted of or pleaded t,ruilty, no contest, or 110/o contendre, to any offense involving fraud,
corruption, or moral turpitude. Neither Promoter nor any of the above persons have been listed
by any government agency as debarred, suspended, proposed for su spension or debannent, or
otherwise declared ineligible for government procurement progrnms. Neither Promoter nor its
owners, controlling shareholders, related companies, or any current or fonner employee is on
any government restricted parties list.
c.[mproper Pavments. Promoter represents and warrants that, in perfonning obligalions under
this Agreement, neither Promoter nor any person acting on Promoter's behalf has given,
promised to give, offered to give, or will give, promise to give, or offer to give, any loan, gift,
donation1 payment, or other items of value, directly or indirectly, whether in cash or in kind, toor for the benefit of any government official and/or political party, for the purpose of obtaining
or retaining business or securing any improper advantage f9r GM. If any government official,
or anyone acting or purporting to act on behalf of any government official, directly or indirectly
requests or solicits any sum of money or anything of vnlue from Promoter in connection withthis Agreement, Promoter will immediately a�vise, GM. Pr9,mOier will not pay or tender,
directly or indirectly, any commission or findCrs o� refei;raI fees to any person or finn in
connection with carrying out its obligations under thiS,Agreement without the prior writtenapproval of GM ' .... , ,.
d.Tennination for Violation. Any"'lfrea�h of Jl1iS Section by Promoter will be considered an
incurable breach, and GM may imme4iatCly tcnninate this A&rreement in accordance with
Section 8.
13.No Implied Waiver
a.Pcrfonnanc�. EithC! p�rty•s failure at any time to require performance by the other party will
not affect thnt party?s right to require full pcrfonnance nt a later time.
b.Breach. Neither party's waiver of any breach wil1 constitu te a waiver of any provision of this
ahrrcemcnt or of any succeeding breach.
14.Assignment
Promoter may not assign, transfer, or subliccnse this Agreement, in whole or in part, or any of its
rights or obligations under this Ab,rreement, to any party without the prior wrilten consent of GM.
A purchase of all or substantially all of the assets. business, or securities of Promoter's parent
company will not be deemed a transfer of the Agr eement under this section.
15.Relationship of the Parties
Promoter and GM arc independent contracting parties. Nothing in this Agreement will create a
partnership, joint venture, or agency relationship between them. This Ab'Teement does not grant
either party any authority to assume or create any obligation on behalf of the other.
I 6. Notices
Unless olherwise a&-,reed to by the parties, any notice to be given under this Agreement will be in writing and will be effective when: (a) personally delivered; or (b) sent by registered or certified
mail, return receipt requested, postage prepaid, to the addresses set forth below ( or other addresses as may be requested by either party by like notice):
To GM:
General Motors LLC JOO Renaissance Center Detroit, Ml 48265-1000 Attention: Kelly MacDonald Title: Sr. Manager, Media & Advertising
Email: ke ll \' .m ricdonald1£/· u:111.com
With a copy to:
General Motors LLC 300 Renaissance Center Detroit, Ml 48265-3000 Attention: James J. Williams Title: Practice Area Manager, Sales & Marketing Mail Code: 482-C24-B8 l
Email: james.j.williams@gm.com C
l 7.Entire Agreement
To Promoter:
Eagle County Animal Services I 400 Fairgrounds Rd. Eagle, CO 81631
Attention: Ms. Rl1iannon Rowe Title:_��----,,--,--
Email: Rhiannon.rowc(lVea2lccountv.us
With a copy to:
Eagle County Attorney 500 Broadway P,O B�x 850 'Eagle,",Co 8 I 63 l
"' '," ;.''
··Einail: iitty@eaglecounty.us
} ·7 This Ab<reernent, including the ,attached Exhibits and Schedules: (a) contains the entire
understanding 9f the partieS; Jb)'° supersedes all prior oral or written agreements, understandings,
representations,' or wari"�ntj_�iibetween the parties; and ( c) will not be amended except by a written document si&'lled by ail parties. If conflict or ambiguity between this Agreement and any Exhibits/Schedules exists, the tenns of this Agreement will apply.
The parties have caused this Agreement to be executed by their duly authorized representatives on the dates indicated below.
Promoter Eagle County, Colorado 1 p/J
By: �IJ-l,-H-,.1/-""""-d���--Print Name: .Yeif!;hroll .,,---,,-,--------Title: County Manager
Date: b" 7-;l6 Ii\
GM General Motors
By:
Print Name:
Title:
Date:
GM a&>rees to the following:
GENERAL MOTORS LLC
PROMOTIONAL AGREEMENT
EXHIBIT A -GM'S OBLIGATIONS
I.GM will partner with Eagle County Animal Services as part of GM's social mediacampai!,'11 for the GoPro Mountain Games (the "Social Media Campaign") which will take place atthe Eagle County Animal Shelter (the "Venue") in Eagle, CO from June 7, 2018 through June I 0, 2018.
2.GM agrees to pay to Promoter a total sponsorship fee of two thousand dollars ($2,000.00)(the "Fee") in installments. GM may deduct from the Fee any amounts owed to GM by Promoter.Each Fee installment will be payable within 65 days after GM receives an invoice for the indicatedpayment. Promoter will issue invoices for each payment as follows:
$1,000.00 to be invoiced on or after the execution date of this Agreement '
$1,000.00 to be invoiced on or after GM's receipt of proof of performance binders acceptable to GM as described in Exhibit B ,,-/
3.GM will provide PROMOTER a custom-built dog hous; (the "htig.H;use") to be used as part GM'sSocial Media Campaign. Consumers will be allowed to ta!<� pbotos'oftheir pet(s) with the Dog Houseand share on social media. PROMOTER will keep the Dog House after the completion of the SocialMedia Campaign.
GENERAL MOTORS LLC PROMOTIONAL AGREEMENT
EXHIBIT B -PROMOTER'S OBLIGATIONS
Promoter a,brrees to the following:
1. GM receives the right to include PROMOTER as part ofGM's Social Media Campaib'll;
including, but not limited to, on�site signage and any GM social media messaging.
2.Two (2) proofofperfonnance binders to include, but not be limited to, samples of printed
materials, photo;,'111phs of the Dog House showing the GM si;,'llage, attendance, GM's display
areas, media affidavits and any other materials that will show proof of PROMOTER's
perfonnance related to this A;,>reement. PROMOTER will ship the binders to GM's agency, JackMorton Worldwide, at: 2000 Brush St., Suite 301, Detroit, Ml 48226 to the attention of Bryan
Fleck.
GENERAL MOTORS LLC PROMOTIONAL AGREEMENT
EXHIBIT C -INTENTIONALLY OMITTED
GENERAL MOTORS LLC PROMOTIONAL AGREEMENT
EXHIBIT D -INTENTIONALLY Ol\UTTED
