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HomeMy WebLinkAboutC21-205 General Motors-1 - GENERAL MOTORS LLC PROMOTIONAL AGREEMENT This Promotional Agreement (together with all Exhibits, Schedules, and document(s) subsequently incorporated, collectively, the "Agreement") is between General Motors LLC, a Delaware limited liability company with a principal place of business at 100 Renaissance Center, Detroit, Michigan 48265-1000 ("GM"), and Eagle County, Colorado, a body corporate and politic with a principal place of business at 1400 Fairgrounds Rd., Eagle, CO 81631 ("Promoter"). The parties agree as follows: 1.Promotional Considerations a.From GM. GM will provide to Promoter the consideration listed in Exhibit A. b.From Promoter. Promoter will provide to GM the consideration listed in Exhibit B. c.Safety. The parties acknowledge and agree 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. 2.Intellectual Property a.License of Marks. Promoter and GM acknowledge that each party owns certain names, trademarks, service marks, copyrights and other intellectual property (“Marks”), and owns or has certain merchandising rights in and to the Marks, and all goodwill associated with or symbolized by the Marks. It is understood that 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 and revocable license to use its Marks during the term of this Agreement and subject to the terms and conditions hereinafter set forth, solely in connection with advertising and promoting any event or activity incidental hereto. b.Approval of Marks. Each party must agree in writing as to the form and content of any promotional or advertising materials and the media in which such materials are to be used prior to their use, which approval the parties 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 termination or expiration of this Agreement or notice of withdrawal of approval granted under Section 2b, 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. DocuSign Envelope ID: EF8969CE-E5B7-4F9E-B6B8-B76F6450E946 C21-205 - 2 - 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, and all rights with respect to the Marks not specifically granted in this Agreement will be and are hereby reserved to the respective owner. f. Reservation of Rights. Neither party is granted 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 permission to do so from the other party, and if granted, the parties will negotiate in good faith a separate licensing agreement 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 information relative to this Agreement. b. No Publication or Disclosure. Each party agrees not to publish, or help anyone else publish, anything whatsoever that references the other party or the products, goods, or services of the other party, except with the prior written consent of the other party. 4. Exclusivity of Performance During the Term, Promoter will not conduct or participate 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. Promoter also represents and warrants that no other motor vehicle or component parts manufacturer, distributor, dealer, or service provider will be involved with the activities described in this Agreement without the prior written approval of GM. 5. Term and Right of First Refusal a. Term. This Agreement begins on the last date on the signature page and ends on June 14, 2021 (the “Term”). If the Term is longer than one year, GM can terminate this Agreement effective December 31 of any year by giving Promoter written notice of termination before October 1 of that year. b. Right of First Refusal. If Promoter intends to conduct activities similar to those set forth in Exhibit 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 participate in those activities before, or within 90 days after, the expiration or termination of DocuSign Envelope ID: EF8969CE-E5B7-4F9E-B6B8-B76F6450E946 - 3 - 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 terms of the proposal. If GM rejects the terms 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 terms to others which are materially different than those previously offered to GM without first offering those different terms to GM. c. . Disrepute. If, at any time during the term, (A) either party commits any act or does anything that (i) is or shall be an offense involving moral turpitude under Federal, state or local laws, or (ii) which brings either party into public disrepute, contempt, scandal, or ridicule, or (iii) which insults or offends the community or any substantial organized group thereof, or (iv) disparages the products or services of either party, or (B) the brand(s) subject to the promotional activities set forth in this Agreement become tarnished or the subject of public disrepute, contempt, scandal, or ridicule and the terminating party can reasonably show that such event had an unfavorable impact on GM’s investment under this Agreement, then at the time of any such event or at any time after the terminating party learns of any such event, the terminating party will have the right, at its sole option, to terminate this Agreement by written notice to the other party to that effect, without liability to the other party. In the event of such termination, Promoter shall promptly refund to GM a pro rata portion of any payment made to Promoter pursuant to this Agreement. 6. Indemnification a. GM. GM agrees to indemnify and hold harmless Promoter, its officers, directors, agents, and employees, from and against any and all Claims arising out of: (1) GM’s, its directors’, officers’, employees’, agents’, or subcontractors’ breach of any representation, warranty, or obligation under this Agreement; (2) the misconduct or negligence of GM, its directors, officers, employees, agents, or subcontractors; or (3) Promoter’s use of GM’s Marks as authorized by this Agreement. b. Survival. The obligations to indemnify contained in this Section will survive the expiration or termination of this Agreement. 7. Insurance a. Kinds of Insurance and Minimum Limits. During the Term, Promoter will maintain, at its own expense, the following kinds of insurance and minimum limits. Kind of Insurance Minimum Limits 1. Commercial General Liability (including contractual liability) $1,000,000 per occurrence combined single limit for personal injury and property damage DocuSign Envelope ID: EF8969CE-E5B7-4F9E-B6B8-B76F6450E946 - 4 - 2. If spectator events are identified on Exhibit B, Promoter will maintain spectator’s liability insurance (either included in the Commercial General Liability or in a separate policy) $5,000,000 per occurrence combined single limit for personal injury and property damage 3. Workers Compensation 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 furnish GM with a certificate that: (1) indicates the applicable coverages; (2) names GM as an additional insured (except Workers Compensation); (3) states that such insurance is primary in coverage 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 nor the furnishing of the certificate will release Promoter from its obligations or liabilities under this Agreement. 8. Termination a. Breach. If a party (1) repudiates or breaches any of the terms of this Agreement, or (2) fails to make progress so as 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 (10) days, or a shorter period if commercially reasonable, after receipt of written notice specifying the breach or failure. b. Insolvency. Either party may terminate this Agreement immediately, without liability to the other party, if: (1) the other party is insolvent or is the subject of the filing of any petition under any bankruptcy, reorganization, or receivership law; (2) an assignment 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, assignment, or appointment is withdrawn or nullified within 15 days of such event. c. Return of Funds. If this Agreement is terminated in accordance with Sections 5, 8, or 9: (i) Promoter will promptly provide GM a pro rata refund for services not performed by Promoter; and (ii) each Party will cease the use of the other party’s Marks as soon as is practicable, but in any event within ninety (90) days. These remedies are 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, consequential, or punitive damages arising out of a breach of this Agreement. DocuSign Envelope ID: EF8969CE-E5B7-4F9E-B6B8-B76F6450E946 - 5 - 9. Force Majeure Any delay or failure of either party to perform its obligations under this Agreement will be excused if it is caused by an event beyond its reasonable control and without its fault or negligence. This will include, but is not limited to, acts of God, actions by governmental authority, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, terrorist acts or labor problems. The party claiming force majeure 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 continues for more than 30 days (or a shorter time if reasonable under the circumstances), either party may terminate this Agreement. 10. Governing Law and Severability 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 term of this Agreement is determined to be invalid or unenforceable under any statute, regulation, ordinance, executive order, or other rule of law, that term will be considered reformed or deleted, but only to the extent necessary for compliance, and the remaining provisions of this Agreement will remain in full force and effect. 11. Taxes a. Tax Cooperation. The parties will work together in good faith to generate tax efficiencies and to minimize both Direct Taxes and Transaction 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 information reasonably requested, file any relevant tax returns, and contest the imposition of any Direct or Transaction 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 “gross-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. Transaction Taxes. The price for this Agreement does not include Transaction taxes that promoter is legally required to charge on invoices issued to GM. GM will review all tax charges and notify Promotor of any disagreement. Promoter and GM will work in good faith to resolve all open issues. “Transaction Taxes” means any 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 DocuSign Envelope ID: EF8969CE-E5B7-4F9E-B6B8-B76F6450E946 - 6 - under this Agreement. Transaction Taxes do not include any tax that is statutorily imposed on Promotor arising from its consumption of any product or services. d. Compliance and Documentation. Promoter will separately state Transaction Taxes on its invoices to GM in accordance with local tax law. Promoter will collect such Transaction Taxes from GM and remit them to the relevant tax authorities unless (1) GM has provided Promoter with documentation that Promoter is exempt from collecting Transaction Taxes from GM (such as a direct pay permit), or (2) the law requires GM to remit Transaction 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 Transaction Taxes erroneously paid by GM. 12. Compliance with Laws Promoter shall at all times comply with all federal, state and local laws, ordinances, regulations, and orders that are applicable to this Agreement and its performance hereunder. Without limiting the generality of the foregoing, Promoter shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this Agreement. 13. No Implied Waiver a. Performance. Either party’s failure at any time to require performance by the other party will not affect that party’s right to require full performance at a later time. b. Breach. Neither party’s waiver of any breach will constitute a waiver of any provision of this agreement or of any succeeding breach. 14. Assignment Promoter may not assign, transfer, or sublicense this Agreement, in whole or in part, or any of its rights or obligations under this Agreement, to any party without the prior written consent of GM. 15. Relationship of the Parties Promoter and GM are independent contracting parties. Nothing in this Agreement will create a partnership, joint venture, or agency relationship between them. This Agreement does not grant either party any authority to assume or create any obligation on behalf of the other. 16. Notices Unless otherwise agreed 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): DocuSign Envelope ID: EF8969CE-E5B7-4F9E-B6B8-B76F6450E946 - 7 - To GM: General Motors LLC 100 Renaissance Center Detroit, MI 48265-1000 Attention: Christine Philips Title: ________________________ Email: christine.philips@gm.com To Promoter: Eagle County Animal Services 1400 Fairgrounds Rd. Eagle, CO 81631 Attention: Rhiannon Rowe Title: ________________________ Email: rhiannon.rowe@eaglecounty.us With a copy to: General Motors LLC 300 Renaissance Center Detroit, MI 48265-3000 Attention: Jason L. White Title: Counsel, Sales & Marketing Mail Code: 482-C24-A68 Email: jason.l.white@gm.com With a copy to: Eagle County Attorney 500 Broadway PO Box 850 Attention: County Attorney Email: attorneys@eaglecounty.us 17. Entire Agreement This Agreement, including the attached Exhibits and Schedules: (a) contains the entire understanding of the parties; (b) supersedes all prior oral or written agreements, understandings, representations, or warranties between the parties; and (c) will not be amended except by a written document signed by all parties. If conflict or ambiguity between this Agreement and any Exhibits/Schedules exists, the terms 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 Animal Services GM General Motors LLC By: By: Print Name: Print Name: Title: Title: Date: Date: Exhibit List: Exhibit A – GM’s Obligations Exhibit B – Promoter’s Obligations DocuSign Envelope ID: EF8969CE-E5B7-4F9E-B6B8-B76F6450E946 County Manager 6/8/2021 Jeff Shroll Christine Phillips 6/8/2021 CRM and Experiential Assistant Marketing Manager - 8 - GENERAL MOTORS LLC PROMOTIONAL AGREEMENT EXHIBIT A - GM’S OBLIGATIONS GM agrees to the following: 1. GM will partner with Eagle County Animal Services as a part of GM's social media campaign for the GoPro Mountain Games (the "Social Media Campaign") which will take place at the Eagle County Animal Shelter (the “Venue”) in Eagle, CO from June 10, 2021 through June 14, 2021. 2. GM agrees to pay to Promoter 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 within 65 days after GM receives an invoice for the indicated payment. Promoter will issue invoices for each payment as follows: • $500.00 to be invoiced on or after the execution date of this Agreement • $500.00 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 house (the "Dog House") to be used as part 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 Social Media Campaign. DocuSign Envelope ID: EF8969CE-E5B7-4F9E-B6B8-B76F6450E946 - 9 - GENERAL MOTORS LLC PROMOTIONAL AGREEMENT EXHIBIT B – PROMOTER’S OBLIGATIONS Promoter agrees to the following: 1. GM receives the right to include Promoter as part 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 performance binders to include, but not be limited to, samples of printed materials, photographs of the Venue and Sponsorship showing the GM signage, attendance, GM’s display areas, and any other materials that will show proof of Promoter’s performance related to this Agreement. Promoter will ship the binders to GM’s agency, Jack Morton Worldwide, at: 2000 Brush Street, Suite 301, Detroit, Michigan, 48226. DocuSign Envelope ID: EF8969CE-E5B7-4F9E-B6B8-B76F6450E946