HomeMy WebLinkAboutC19-200 General Motors LLCGENERAL MOTORS LLC
PROMOTIONAL A GREEMENT
This Promotional Agreement (together w ith all Exhibits, Schedules, and document(s) subsequ ently
inc01porated, collectively, the "Agreement") is between General Motors LLC, a Delaware limited liability
company with a principal p l ace of business at 100 Renaissance Center, Detroit, M ichigan 48265 -1000
("GM"), and Eagle Cou nty, Colorado a body cotp orate and politic with a p rincipal p lace o f bu siness at
1400 Fairgrounds Rd., Eagle, C O 81631 ("Promoter"). The p atties agree as fo llows:
I . Promotional Considerations
2.
a. From GM. GM w ill provide to Promoter the consideration listed in Exhibit A .
b. From Prom oter. Promoter will provide to GM the consideration listed in Exhibit B .
c. Safety. The p atties acknowledge and agree that safety is a fundamental p tiotity critically
impottant to both patties. Should either patty condu ct their obligation s under thi s Agreement
in a manner incon sistent w ith consumer safety as reason ably determined by the other patty,
such action w ill be con sidered a breach for wh ich Section 8(a) of this Agreemen t will a pply.
Intellectual Property \
a. L icense of Mark s. Promoter and GM acknowledge that each patty owns cettain names,
trademarks, servi ce mark s, copyiights and other intellectual prop etty ("Mar ks"), and owns or
has cettain merchandising tights in and to the Mat·ks , and all goodwill associated w ith or
symbolized by the Mat-ks. It is understood that in promoting Promoter's activities, Promoter
and GM may mak e vat·i ous references-to the activities and m ay d ispl ay th e Marks of Promoter
and GM, and p ictures o f the activities . Each patty hereto grants to the other a nonexclusive,
nontransferable licen se to u se its Mar ks during the tetm of this Agreement an d su bject to the
tetms and conditi on s hereinafter set fott h , solely in connection w ith advettising and prom oting
any event or activ ity incidental hereto.
b. A pproval o f Mat·ks. Each patty m u st agree in wiiting as to the f01m and con ten t of any
prom otional or advettising materials and the media in which such m aterials ar e to be u sed ptior
to their u se, which approval the patties w ill n ot umeasonably wi thhold; and su ch use may be
subject to su ch reasonable conditions as either patty may impose, inclu ding, but not l imited to,
conditions affording each patty adequ ate protection of its Mat-ks.
c. Cessation of Use. Up on tetmination or expiration of this Agreemen t, both p atti es w ill cease all
u se of the Mat·k s of the other patty as soon as practicable, but in any event w ithin thitty (30)
days unless the patticulat· media which has been app roved requires a lon ger lead time, b ut in
no event longer than ninety (90) days.
d. No Challenge of Mat-ks. Neither p atty will impugn, challenge or assist in any challenge to the
validity o f the oth er p atty's Mat·ks , any registrations thereof, or the ownersh ip thereof.
e. Protection of Mark s. Each patty w ill be solely responsible for taking any actions as it deelllS
approptiate to obtain trademat·k, service m at·k, or cop yiight registration for i ts respective
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Marks. A ll uses of or references to the Marks will inure to the benefi t of the respective owner,
and all 1ights with respect to the Marks not specifically granted in this Agreement will be and
are hereby rese1ved to the resp ective owner.
f. Rese1vation of Rights. Neither party is granted any 1ight or license l mder this Agreement to
sell, or othe1wise d i stiibute for sale, any promotional or adve1tising mate1ials, or items related
thereto. If a pruty desires to sell, or d isti·ibute for sale, any such materials or other
merchandi sing or novelty items beru·ing the names, trademarks, copyrights, or other intellectual
prope1ty of the other pruty, then it will request pennission to do so from the other p ruty, and if
granted, the pa1ties will negotiate in good faith a sepru·ate licensing agreement cove1i ng such
mate1ial s or items before they may be sold or distributed for sale.
3. Consumer Information and Confi dentiality
4.
a. No Cu stomer Lists. Promoter and GM acknowledge and agree that there will be no transfer of
customer lists, databases, or any other per sonally identifiable information relative to this
Agreement.
b . No Pu b lication or D isclosure . Each pa1ty agrees not to publish, or help anyone else publish,
anything whatsoever that references the other paity or the products, goods, or se1vices of the
other paity, except w ith the p1ior written consent o f the other p a1ty .
Exclusiv ity of P erform ance
Dming the T em1, Promoter will not cenduct or pruticipate in any promotional activities with any
other motor vehicle or component p a1ts manufacturer, distlibutor, dealer, or service provider
without the p1ior written approval of GM. Promoter also represents and wruTants that no other
motor vehicle or component pruts manufacturer, distributor, dealer, or se1vice provider will be
involved with the activities desc1ibed in this Agreement without the prior written approval of GM.
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5. Term and Right of First Refusal
a. Te1m. Thi s Agreement begins on the l ast date on the signature page and ends on June 9 , 2019,
(the "Te1m"). If the T e1m is longer than one year, GM can te1minate this Agreement effective
December 31 of any year by giving Promoter written notice of tennination before October 1 of
that year.
b. Right of First Refusal. If Promoter intends to conduct activities similar to those set fo1th in
ExWbit B at any time during the full calendar year following the end of the Term, Promoter
must provide GM a written proposal for GM to paiticip ate in those activiti es before, or w ithin
90 days after, the expiration or te1mination of this Agreement. Promoter w ill provide this notice
to GM at least sixty (60) days prior to the commencement of such activities . W ithin 30 days o f
receiving the proposal, GM w i ll advise Promoter in writing wh ether it accepts the te1ms o f the
proposal. If GM rejects the te1ms of the prop osal and the pa1ties cannot negotiate mutually
acceptable terms, then Promoter will be free to negotiate with others. However, Promoter will
not o ffer terms to others which are materi ally d i fferent than those previously offered to GM
w ithout first offering those different terms to GM.
c. D isrepute. If, at any time dmi ng the term , (A) either paity commits any act or does anything
that (i) is or shall be an offense involving moral turpitude u nder Federal, state or local laws, or
(ii) which b1ings e ither party into public disrepu te, contempt, scandal, or 1idicule, or (iii) which
insults or offends the community or any su bstantial organized group thereof, or (iv) d ispar·ages
the p rodu cts or services o f e ither party, or (B) the brand(s) subj ect to the promotional activ ities
set forth in this Agreement become tarnished or the subject of p u blic d isrepute, contempt ,
scandal , or ridicule and the terminating party can reasonably show that such event had an
unfavorable impact on GM's investment u nder this Agreement, then at the time o f any such
event or at any time after the te1minating party learns of any such event, the te1minating patty
w i ll h ave the right, at its sole option, to terminate this Agreement by written notice to the other
pa1ty to that effect, w ithout liability to the other paity. In the event o f su ch termination,
Promoter shall promptly refund to GM a pro rata p01tion of an y payment made to Promoter
pursuant to this Agreemen t.
6. Indemnification J
a. GM. GM agrees to indemnify and hold haimless Promoter, its o fficers, d irectors, agents, and
employees, from and against any and all C laims ai·ising out of: (1) GM's, its d irectors',
officers', employees', agents', or subcontractors ' breach o f any representation, wairnnty, or
obligation under this Agreement; (2) the misconduct or negli gence of GM, its directors,
officers, employees, agents, or subcontractors; or (3) Promoter's use o f GM's Marks as
authorized by this Agreement.
b . Survival. The obligation s to indemnify contained in this Section w ill survive the expiration or
te1mination of this Agreement.
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7. Insurance
8.
a. K inds of Insurance and Minimu m Limits. During the Term, Promoter will maintain, at its own
expense, the following k inds of insurance and minimum limits.
Kind of Insurance
1 . Commercial General Li ability
(including contrachial lia b ility)
2. If sp ectator events are ident ified on
Exhibit B , Promoter w ill maintain
spectator 's liability insurance (either
includ ed in the Commercial General
L iability or in a sep arate policy)
3. Workers Compensation
Minimum Limits
$1 ,000,000 per occunen ce combined single
limit fo r p ersonal inj my and prope1ty
d amage
$5,000,000 per occunence combined single
limit for personal injmy and prope1ty damage
Statuto1y (for all states of operation)
including Employer's Liability with limits
of at least $500,000
b . Ce1tificate. Before it begins any activities desciibed in this Agreemen t , Promoter will furnish
GM with a ce1tificate that: (1) in dicates the a pplicable coverages; (2) names GM as an
additional insured (except Workers Compensation); (3) states that such insurance is primaiy in
coverage to any other insurance whi ch may be avail able to GM; and ( 4) provides at least 30
days' prior written notice to GM of cancellation, modification , or material change to the policy.
Tue ce1tificate will b e in a fo1m acceptable to GM and must be unde1written by an insurer
sat isfact01y to GM.
c. No Release of Obligations. Neither Promoter's purchase o f appropriate insurance coverage nor
the furnishing of th e ce1tificate will re lease Promoter from its obligati ons or liabilities under
this Agreement.
Termination __,.)
a. Breach. If a paity (1) repudiates or breaches any of the tenns of this Agreement , or (2) fails to
make progress so as to end anger timely and prop er completion of its p erf01mance, the other
pa1ty may te1minate thi s Agreement, without liability, if the defaulting pa1ty does not con ect
the b reach or failure within ten (10) days, or a sho1ter pe1iod if commercially reasonable, after
receipt of wiitten notice specifying the breach or failure.
b . Insolvency. Either pa1ty may terminate this Agreement immediate ly, w ithout liability to the
other paity, if: (1) the other paity is insolvent or is the subject of the filing of any petition under
any bankrnptcy, reorganization, or receivership l aw; (2) an assignment is executed for the
benefit of the other pa1ty's creditors ; or (3) a tmstee orreceiver is appointed for the other pa1ty's
business or assets or any pait thereof; unless such petition, assignment, or appointment is
w ithdrawn or nullified w i thin 15 days of such event.
c. Rehun of Funds. If this Agreement i s te1minated in accordance with Sections 5 , 8 , or 9 , (i)
Promoter w ill p romptly: (1) provide GM a pro rata refund for services not perfo1med by
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Promoter; and (2) each Pa1ty will cease the u se of the other p atty's Mai-ks as soon as is
practicable , bu t in any event within ninety (90) days. T hese remedies ai·e in addition to any
other tights or remedies that either p a1ty may have at law or in equity. Neither pa1ty will be
liable to the other for incidental, consequential , or punitive damages arising out of a breach of
this Agreement.
9. F orce Maj eure
10.
11.
Any delay or failure of either paity to pe1f 01m its obligations under this Agreement will be excused
if it is caused by an event beyond its reasonable con trol and without its fault or negligence. T his
will include, but is n ot limited to, acts o f God, actions by governm ental au thority, fires , floods,
windstmms, explosions, riots, natural d isasters, wars, sabotage, te1rn1i st acts or labor problems.
The patty claiming force m aj eure must promptly notify the o ther p a1ty of the event, the anticipated
duration of the event , and the st eps being taken to remedy the delay or fai lure. If the event continu es
for more than 30 days (or a sh011er time if reasonabl e under the circumstances), either p a1ty may
te1minate this Agreement.
Gov erning Law and S everability •
This Agreement will be governed by and construed according to t he laws of the St ate o f Colorado,
excluding any laws which d irect the a pp lication of laws of an y other jmisdiction. If any te1m of
this Agreement is dete1mined to be invalid or unenforceabl e under any statute, regulation,
ordinance, executive order, or other m l e of law, that te1m :will be considered refo1med or deleted,
but only to the extent necessa1y for compliance, and the remaining provisions o f this Agreement
will remain in full force and effect.
T axes • / ..
a. Tax Cooperation. The pa11ies will work together in good faith to generate tax efficiencies and
to minimize both Direct Taxes and T ransactional Taxes ( defined below). Promoter w ill take all
steps to ensure that it d irectly invoices the GM entity that receives the se1v ices, and it w ill work
w ith GM to ensure delive1y locations are co1Tectly invoiced by se1vice. If GM i s audited or
assessed any t ax related to this Agreement, Promoter will cooperate with GM and make
avail abl e to GM relevant documents, records, or info1mation reasonably requested, file any
relevant tax retmns, and contest the imposition o f any Direct or T ransactional Taxes or any
related interest or penalty.
b. D irect T axes . Promoter is responsible for its own D irect Taxes and may not chai·ge or recover
D irect Taxes from GM. If a jmisdiction requires GM to withhold D irect Taxes from GM's
payment to Promoter, GM will provide Promoter with appropriate documentation and
Promoter will apply the D irect T ax withholding as a payment from GM to Promoter. In no
event will GM "gross-up" any payment for withheld Dir ect Taxes. "D irect Tax" means any
tax, fee, surcharge, or exaction o f any other type that is legally imposed on Promoter by a tax
authority, including any tax relating to Promoter 's income, gross receip ts (including Ohio's
Commerci al Activ ity Tax), capital , net w011h, franchise, priv ilege, prope1ty, or any
employment-related tax imposed on Promoter.
c. Transaction T axes. The p rice for this Agreement does not inclu de T ransactional taxes that
promoter is legally required t o charge on in voices issued to GM. GM w ill review all tax chai·ges
and notify Promotor of any disagreement. Prom oter and GM w ill work in good fai th to resolve
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all open issues. Transaction Taxes means any sal es tax, use tax, excise tax, or consumption tax
that i s legally imposed either jointly or severally on GM relating to the se1vices provided to
GM under this Agreement. Transactional Taxes do not include any tax that is statutolily
imposed on Promotor a1ising from its consumption of any product or servi ces .
d . Compliance and Documentation. Promoter w ill separately state Transactional Taxes on its
invoices to GM in accordance w ith local tax law. Promoter w ill 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 d irect pay pennit), or (2) the law requires GM to relnit Transactional Taxes
d irectly to the tax authority. If an invoice is not legally compliant, Promoter will be responsible
for cming th at invoice, and the deadl ine for payments subject to the re-invoicing procedure will
be restaited in accordance w ith GM's commercial payment practices. Promoter will reimburse
GM in a timely manner for any Transactional Taxes enoneously paid by GM.
12. Compliance w ith Laws
13.
Promoter shall at all times comply with all federal , state and l0cal laws, ordinances, regulations,
and orders that ai·e applicab le to this Agreement and its p erfo1mance hereunder. W ithout lilniting
the generality of the fo regoing, Promoter shall at a ll times, at its own expense, obtain and maintain
all cettifications, credentials , auth01izations, licenses and petmits necessa1y to conduct its business
relating to the exercise of its tights and the petfotmance of its obligations under this Agreement.
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No Implied Waiver •
a. Perfotm ance. Ei ther pa1ty's failure at any time to require perfotmance by the other paity w ill
not affect that pa1ty's tight to require full perf01mance at a later time .
b. Breach . Neither paity' s waiver of any breach w ill constitute a waiver of any provision of this
agreement or of any succeeding breach.
14. Assi gnment
Promoter may not assign, transfer, or sub license this Agreement, in whole or in pait, or any o f its
tights or obligations under this Agreement, to any paity without the prior written consent of GM.
A purchase o f all or substantia lly all of the assets, business, or securities of Promoter's pai·ent
company will not be deemed a transfer of the Agreement under this section.
15. Relation ship of the Part ies
Promoter and GM are independent contracting patties. Noth ing in this Agreement will create a
paitnership, joint venture, or agency relationship between them. This Agreement does not grant
either paity any authotity to assume or create any obligation on behalf of the other.
16. Notices
Unless othetwise agreed to by the paities, any notice to be g iven under this Agreement will be in
wiiting and w ill be effective wh en: (a) personally delivered; or (b) sent by registered or cettifie d
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mail, return receipt requested, postage prepaid, to the addresses set fmth below ( or other addresses
as may be requ ested by e ither pa1ty by like notice):
17.
To GM:
General Motors LLC
100 Renaissance Center
Detroit, M I 48265-1000
Attention: Chlistine Philips
Email: christine.philips@gm.com
With a copy to:
General Motors LLC
300 Renaissance Center
Detroit, M I 48265-3000
Attention: Jason L. White
Title: Counsel, Sal es & Marketing
Mail Code: 482-C24-A68
Email: jason.l.white@gm.com
Entire Agreement
To Promoter:
E agl e County Animal Services
1400 Fairgrounds Rd.
Eagle, CO 8163 1
Attenti on: Rhiannon Rowe
Email: rhiannon.rowe@eaglecounty.us
With a copy to:
Eagle County Attorney
500 Broadway
PO B ox 850
Attention : County Attorney
Email: attorneys@eaglecounty.us
This Agreement, including the attached Exhibits and Schedules: (a) contains the entire
understanding of the p aities; (b) supersedes all p1ior oral or written agreemen ts, understandings ,
representations, or waii:anties between the pait ies; and ( c) will not be amended except by a written
document signed by all paities. If conflic t or ambiguity between this Agreement and any
Exhibits/Schedules exi sts, the te1ms of this Agreement will apply.
The patties have caused this Agreement to be executed by their duly authmized represen tatives on the dates
indicated below.
Promote r
Eagle County Animal Services
By:
PlintName: Jeff Shroll
Title: County Manager
Date:
Exhibit List:
Exhibit A -GM's Obligations
Exhib it B -PI·omoter's Obligations
GM
General Motors LLC
By:
PlintName:
Title :
Date:
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Christine Phillips
CRM and Experiential Assistant Marketing Manager
6/5/20196/5/2019
GM agrees to the following :
GENERAL MOTORS LLC
PROMOTIONAL AGREEMENT
EXHIBIT A -GM'S OBLIGATIONS
1. GM will paitner with Eagle County Animal Se1vices as a part of GM's social media
campaign for the GoPro Mountain Games (the "Social Media Campaign") which will take p lace
at the Eagle County Animal Shelter (the "Venue") in Eagle , CO from June 6 , 2019 through June 9,
2019.
2. GM agrees to pay to P romoter a total sponsorship fee of one thousand dollars ($1,000.00)
(the "Fee") in installments. GM may deduct from the Fee any amounts owed to GM by Promoter.
Each Fee installment will be payable w ithin 65 days after GM receives an invoice for the indicated
pay ment. Promoter will issue invoices for each payment as fo llows:
$500.00 to be invo iced on or after the execution date of this Agreement
$500.00 to be invoiced on or after GM's receipt of proof ofperfmmance binders acceptable to GM
as described in Exhibit B
3. GM will provide Promoter a custom built dog house (the "Dog House") to be used as pa1t GM's
Social Media Campaign. Consumers will be allowed to take photos of their pet(s) with the Dog House
and share on social media. Promoter will keep the Dog House after the completion of the Soc ial Media
Campaign.
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GENERAL MOTORS LLC
PROMOTIONAL A GREE MENT
EXHIBIT B-PROMOTER 'S OBLIGATIONS
Promoter agrees to the fo llowing:
1. GM receives the right to include Promoter as pa.it of GM's Social Media Campaign; including, but
not limited to , on-site signage and any GM social media messaging.
2. Two (2) proof of perfmmance binders to include, but not be limited to, samples o f printed mate1ial s,
photographs of the Dog House sh owing the GM signage, attendance, GM's d isplay ru·eas , media affidavits
and any other mate1ials that w ill show proof o f Promoter's perfo1mance related to thi s Agreement. Promoter
will ship the binders to GM's agency, Jack Motton Worldwide, at: 2000 B1ush Street, Suite 301, D etroit,
Michigan, 48226 .
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