FOX PVG and SSG Team Sponsorship Terms and Conditions
THE FOLLOWING TERMS AND CONDITIONS (“TERMS OF SERVICE”) WILL BE LEGALLY BINDING ON TEAM UPON EXECUTION OF THE AGREEMENT. TEAM SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE AGREEMENT.
During the Term, Team shall provide to FOX the services (“Services”) and deliverables (“Deliverables”) described in the Agreement.
1. Materials. Upon termination of this Agreement for any reason or upon request by FOX, Team shall return immediately to FOX all documents, property, and other records of FOX or its clients, and all copies thereof, within Team’s possession, custody, or control, including, but not limited to, any materials containing Work Product (as defined below), Confidential Information (as defined below), or Trade Secrets (as defined below).
2. Work Product and Ownership. In this Agreement, “Work Product” shall mean the data, materials, documentation, computer programs, inventions (whether or not patentable), source code, pictures, audio, video, animations, artistic works, drawings, photographs, and all works of authorship (including, but not limited to, the Services and Deliverables), including all worldwide rights therein under patent, copyright, trademark, trade secret, confidential information, or other property right, created or developed in whole or in part by Team that (a) is created within the scope of the Services and/or Deliverables or in anticipation of performing/providing the Services and/or Deliverables, and/or (b) has been or will be paid for by FOX. FOX shall have perpetual and exclusive ownership of all rights in and to the Work Product, including, but not limited to, copyrights, trademark rights, patent rights, moral rights, and trade secret rights. FOX shall have the perpetual and exclusive right to use, exploit, grant, exhibit, distribute and/or license throughout the universe any Work Product or part thereof via any means now known or hereafter may exist and to otherwise exploit the Work Product in such forums and media and for such uses throughout the universe as FOX deems appropriate or otherwise desires. Team hereby waives any “moral rights” of authors as that term is commonly understood throughout the world including, without limitation, any similar rights or principles of law which Team may now or later have by virtue of the law of any locality, state, nation, treaty, convention or other source.
The parties hereby expressly agree that the Work Product shall be considered “works made for hire” and that the sole right of copyright in and to the Work Product shall belong exclusively to FOX in perpetuity.
3. Releases. Team will obtain all necessary releases, waivers and assignments from all persons and owners of property depicted in any of the Work Product including, but not limited to, those relating to models, likenesses and privacy, so that FOX may freely own and exploit the Work Product in any format, in perpetuity, and on any media platform whatsoever without further obligation or payment to any person or entity. Team may not obtain or borrow any objects or property, lease any location, or enter into a legally binding commitment to a third party, on behalf of FOX without first obtaining FOX's express written consent (written consent provided via email is deemed sufficient). FOX may also use the Work Product and/or Team’s name and/or likeness in publishing, promoting, advertising and publicizing anything in which a Work Product appears, and authorize others to do so.
4. Intellectual Property Rights. Each of the parties’ trademarks, trade name, label designs, product identifications, artwork, names, images, likenesses, and other works, and other symbols and devices associated with the respective party or the party’s products or services (“Intellectual Property”) are and will remain that party’s sole and exclusive property. Each party’s right to use any other party’s Intellectual Property is non-exclusive, non-assignable and non-transferable and will inure solely to the benefit of the owner of the Intellectual Property. Subject to the foregoing, each party grants the other party the following limited, royalty-free, non-assignable, non-exclusive, non-sublicensable, terminable right to use Intellectual Property, as follows:
- License by Team. Team hereby grants to FOX (i) the right to publicize, in FOX’s promotional activities (including, without limitation, FOX advertising, consumer and trade promotions and public relations), FOX’s sponsorship of the Team; and (ii) a license to use, in connection with such promotional activities: the official name of the Team and the Team name, logo, photo and likenesses of Team Members, individually and collectively. Team warrants that any visibility of additional sponsors’ trademarks on Team or its assets in media content is also clear and protected by FOX’s license to use Team’s likenesses. FOX understands and agrees that all promotional materials publicizing FOX’s sponsorship of the Team must be approved by Team prior to use, which approval will not be unreasonably withheld. Team agrees to turnaround all written and creative materials submitted by FOX within three (3) business days.
- License by FOX. FOX hereby grants to Team a license to use FOX’s logos and trademarks (“FOX Logos”) to the extent necessary to allow Team to fulfill its obligations under outlined herein (“Approved Use”).
- FOX retains all rights not expressly and exclusively conveyed to Team hereunder and nothing in this Agreement shall be construed to prevent FOX from granting any other licenses for the use of FOX’s Logos and trademarks to other teams or individuals.
- Team agrees that (i) it will not attack the title of FOX in and to the FOX’s Logos and trademarks pertaining thereto, nor will it attack the validity of the license granted hereunder; (ii) it will not harm, misuse or bring into dispute or disrepute the FOX’s Logos and trademarks or FOX; (iii) it will engage in Approved Use in an ethical manner and in accordance with the terms and intent of this Agreement; (iv) it will not engage in Approved Use without the specific approvals by FOX as set forth herein; and (v) it will protect to the best of its ability its right to Approved Use hereunder.
- Team Member Attributes. In connection with the exercise of the rights granted to FOX, Team and Team Members agrees that FOX shall have the right to use and to permit others to use the name, nickname, signature, photograph, voice, likeness, footage, statements, biography, social media handles, and other identifying attributes of Team or any Team Member (“Team Member Attributes”), on the Internet and Digital, throughout the world, for publicity, advertising, marketing, historical, archival, media and promotional purposes, including Team or Team Member published content, and other purposes consistent with the rights granted in this Agreement, including the direct endorsement of the Campaign and the Services.
5. Warranties of Team.
- Professional Standards. Team represents and warrants that: (i) all Services and Deliverables shall be performed and/or provided in accordance with applicable professional standards; and (ii) Team’s provision of Services and/or Deliverables shall comply in all material respects with the description of the Services and/or Deliverables that appears herein. If any element of the Services and/or Deliverables does not substantially conform to the foregoing warranty, Team shall re-perform such element in a manner that does conform; provided, however, that if in the reasonable judgment of FOX such re-performance is impracticable, Team shall refund that portion of the fees allocable to such non-conforming element within thirty (30) days of FOX’s request.
- Compliance with Laws. Team represents and warrants that it is familiar with, and covenants that, Team shall provide all Services, Deliverables, and Work Product hereunder in compliance in all respects with the relevant obligations of all applicable laws, regulations, administrative requirements, and policies of the U.S. and portions thereof. Compliance with these regulations is considered a material element of Team’s satisfactory performance under the terms of this Agreement, and a breach of this provision provides cause for immediate termination without compensation regardless of any services Team may have provided.
- No Subcontractors. Team may not sub-contract any portion of this Agreement without written approval of FOX.
- No commission. Team warrants that it has not and will not pay or tender, directly or indirectly, any commission, or finders or referral fee to any person or firm in connection with its activities on behalf of the FOX.
- Third Party Infringement. Team represents and warrants that its provision of the Work Product (including, but not limited to, all Services and Deliverables) hereunder shall not infringe, misappropriate or violate any patent, copyright, trademark, trade secret, or other proprietary right of a third party. The responsibility for assuring that no infringement shall occur rests solely with Team. Team shall deliver to FOX, together with delivery of such materials, written consent of every publisher and/or owner of any patent, copyright, trademark, trade secret, or other proprietary right of a third party used or incorporated in the materials in a manner requiring such consent. If the provision or discharge of any of the Services and/or Deliverables is enjoined as a result of any claim arising out of a breach of this warranty, Team shall, at FOX’s option and Team’s sole expense: (i) procure the right to continue to perform/provide such Services and/or Deliverables; (ii) modify the Services and/or Deliverables so that they no longer are subject to any such claim; or (iii) refund to FOX the amortized portion of the fees paid hereunder allocable to such Services and/or Deliverables within thirty (30) days of FOX’s request.
- Qualifications and Competency. Team represents that it has the qualifications and skills necessary to perform the Services under this Agreement in a competent, professional manner, without the advice or direction of FOX. Team shall have complete and sole discretion for the manner in which the work under this Agreement will be performed.
- Confidential Information. Both parties acknowledge and agree that, in the course of performing their responsibilities under this Agreement, each party may receive certain confidential and proprietary information ("Confidential Information") of the other party. Confidential Information includes, but is not limited to, trade secrets, business plans, strategies, methods and/or practices, client and customer lists, financial information, and other information that is marked or identified as confidential or that would reasonably be understood to be confidential. Each party agrees to maintain all Confidential Information received from the other, both orally and in writing, in confidence and shall not disclose or use such Confidential Information without the express prior written consent of the other party, except as required to perform its obligations under this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. This confidentiality provision shall survive the termination of this Agreement and continue in full force and effect until such Confidential Information becomes public knowledge, other than as a result of a breach of this provision by the receiving party.
6. Termination. If either party defaults in the performance of this Agreement or materially breaches any of its provisions, the non-breaching party may terminate this Agreement by giving written notification to the breaching party. Termination will take effect immediately upon receipt of notice by the breaching party or ten (10) days mailing of notice, whichever occurs first. For the purpose of this paragraph, material breach of this Agreement includes, but is not limited to the following: (i) FOX’s failure to pay Team any compensation due within 30 (thirty) days after written demand for payment; (ii) Team’s failure to complete the Services as determined by FOX in its sole discretion; (iii) a party’s material breach of any covenant, warranty or representation contained in this Agreement; (v) If a party files for bankruptcy, has an involuntary petition in bankruptcy filed against it, makes a general assignment for the benefit of its creditors, becomes insolvent or ceases to do business as a going concern, or has a receiver appointed for any substantial portion of its assets or business; (vi) If for any reason whatsoever, financial or otherwise, the Team does not compete in the sport of cycling for a continuous period of longer than sixty (60) days during an annual competitive season; and (vii) Team engages in Negative Behavior (as defined below) during the Term.
“Negative Behavior” means any action or statement (including, but not limited to, social media posts) Team that brings Team into public disrepute, contempt, scandal or ridicule; or that shocks or offends the community or any group or class thereof; or that reflects unfavorably on FOX; or that reduces the commercial value of FOX’s association with Team; or that constitutes any felonious activity and Team is indicted for, convicted of, or pleads guilty to such activity; or any use by of illegal or illicit drugs, doping or the use of performance-enhancing substances or possession of an illegal drug or using guns and other weapons; or any prior Negative Behavior by Team that becomes public during the Term.
Should this Agreement be terminated for any reason, FOX shall pay Team for all Services and Deliverables provided by Team as of the effective date of termination and for all FOX-approved expenses incurred by Team as of the effective date of termination (such expenses must be approved by FOX in writing; email approval is deemed sufficient).
7. Shipping, Taxes, and Duties. FOX shall bear responsibility for all shipping, taxes, and duties related to all products detailed in this Agreement. FOX shall arrange for the shipping of all products using the most economical method, which it will determine at its sole discretion. Should expedited shipping be required, all costs and fees associated with this expedited shipping shall be borne solely by the Team.
8. Prototype Products. FOX may provide Team with Prototype Products for durability testing and feedback. To be eligible to receive Prototype Products or primary access to new Products and technologies, Team agrees to participate in at least one (1) dedicated FOX equipment test sessions in conjunction with FOX’s Product design team to provide documentary feedback regarding performance of Products. Any Prototype Products provided to Team shall not be serviced, tuned, or handled by any third party unless approved in writing by FOX. Prototype suspension components remain the property of FOX. Any and all Prototype Products must be returned to FOX immediately upon request, or no later than December 1st of each calendar year in a reasonable working order and matching the specifications in which they were originally supplied. Prototypes shall be deemed returned once proof of delivery is provided.
9. Exclusive Sponsorship in Product Category. Team agrees that: (i) FOX will be the official and exclusive supplier of Products during the term of this Agreement. Neither the Team nor Team Members will promote, use or endorse any other products or services that are similar to or competitive with FOX’s Products, when competing. Team agrees that it will not give or loan any Product, or portion thereof, to any party unless agreed to in advance and in writing by FOX. Team also agrees that it shall not allow a third party to use FOX’s Products for any type of promotional activities, except for when FOX’s Products are used by the Team in other promotional events or material with another sponsor of the Team. Team agrees that FOX will not subsidize or cover any third-party services or products, and as such, any third-party services or products obtained by Team will be the sole financial responsibility of Team. Team also agrees not to promote any third-party services pertaining to suspension or allow any third-party services pertaining to suspension to utilize Team’s likeness or results to promote such third party’s products or services without FOX’s express and advance written permission.
10. Social Media Practices. Team and its Team Members further agree to:
- Follow FOX’s Social Media Best Practices and Guidelines including utilization of all proper handles and hashtags such as: #Sponsored (PREFERRED), #Ad, #Promotion, or #PaidPartnership;
- Comply with all applicable laws and regulations and Federal Trade Commission (“FTC”) requirements, including the FTC’s disclosure requirements;
- Not make or include any false, deceptive, or unlawful comments in any content;
- Not post any content or material that is is disparaging or hateful, or that is false, defamatory, obscene, indecent, or scandalous.
- All statements and representations in content will be truthful and based on Team and/or each respective Team Member’s own experiences;
- All Social Media Posts with photos or videos is properly cleared and licensed for FOX’s own, non-transferable commercial usage, including visibility of any additional sponsors’ trademarks;
- Alert FOX of any special events, record setting attempts, or significant media coverage so that FOX may be involved and promote at its discretion, when and where possible;
- Provide quarterly highlights and performance results as well as a year-end recap in December of each calendar year;
- If requested, agree to pre-approve any proposed content or posts;
- Immediately comply with any request by FOX to remove any disparaging information or representation from any media sites and to issue any retraction as requested by FOX, in its sole discretion; and
- Comply with any additional guidance from FOX regarding messaging.
11. Insurance; Benefits; and Taxes. Team agrees and acknowledges that Team will not be covered by workers' compensation, insurance, unemployment or other employee benefits or by any other insurance or employee benefit of FOX by virtue of this Agreement. Accordingly, FOX will not withhold from the compensation it pays Team any agreement for taxes, including, without limitation, Income, Social Security, Medicare or any other taxes. Team agrees that Team is responsible to pay all applicable taxes on all compensation paid to Team by FOX.
12. Indemnification. Team agrees to indemnify, defend and hold harmless FOX, its officers, directors, principals, employees, representatives, agents, assigns and each of its affiliates (referred to collectively as “FOX Indemnitee”) from any and all claims, actions, causes of action, damages, injuries, demands, losses, costs, expenses, liabilities (joint or several), penalties, fines, reasonable attorney's fees, direct damages, and any other expenses incurred by FOX Indemnitee which result in any manner from Team’s breach of any of its representations, warranties, or obligations contained in this Agreement or the negligent or reckless acts or omissions of Team or its employees, agents, subcontractors or assigns, however caused. Team’s obligations under this Section shall survive the termination or expiration of this Agreement. FOX agrees to indemnify, defend and hold Team free and harmless from any and all claims, actions, causes of action, damages, injuries, demands, losses, costs, expenses, liabilities (joint or several), penalties, fines, reasonable attorney's fees, direct damages, and any other expenses arising from FOX’s negligent or willful acts or omissions in association with the Services rendered to FOX under this Agreement. Team and FOX obligations under this Section shall survive the termination or expiration of this Agreement.
13. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, in whole or in part, by judgment, order or decree of any court or other judicial tribunal of competent jurisdiction, it shall be severed from this Agreement and the remaining terms and provisions shall remain valid and in full effect.
14. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
15. Applicable Law and Venue. This Agreement will be governed by and construed exclusively in accordance with the laws of the State of Georgia without reference to Georgia’s conflict of law provisions. Both parties hereby agree that the sole venue for any dispute concerning this Agreement shall be Fulton County, Georgia.
16. Waiver. Any waiver or any right under this Agreement shall not be construed as an ongoing or continuing waiver of the same or any other right, unless such waiver is in writing signed by the waiving party.
17. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of FOX and its successors and assigns. Team shall not have the right to assign or subcontract Team’s rights or obligations under this Agreement without the prior written consent of FOX.
18. Assignment. FOX may assign this Agreement and/or any or all of its rights and obligations hereunder: (a) in connection with any change of control of FOX (e.g., merger, exchange of equity interests, corporate restructuring, etc.) or sale of substantially all of the assets of FOX to which this Agreement relates, or (b) to any entity controlling, controlled by or under common control with FOX. This Agreement (and any rights or obligations contained herein) shall otherwise not be assignable, without the prior written consent of the other party.
19. Force Majeure. Neither party shall be liable for loss, delay, nonperformance to the extent resulting from any force majeure event, including, but not limited to, acts of God, strike, riot, fire, explosion, flood, earthquake, natural disaster, terrorism, act of war, civil unrest, criminal acts of third parties, failure of the Internet, governmental acts or orders or restrictions, failure of suppliers, labor stoppage or dispute, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible and any delivery date shall be extended accordingly.
20. Attorney’s Fees. If any action is necessary to enforce the provisions of this Agreement, including any claims or demands, or to interpret this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which it may otherwise be entitled.
21. Entire Agreement. This Agreement supersedes any and all agreements either oral or written between the parties with respect to the rendering of services by Team for FOX and contains all the representations, covenants and agreements between the parties with respect to the reckoning of those services.
22. Goodwill Covenant: During the Term of this Agreement, Team refrain from making any detrimental statements regarding the Campaign, Services, Social Media Posts, and/or FOX. A breach of this Section by Team is deemed a material breach of this Agreement.
23. Time is of the Essence. Time is of the essence with respect to the performance of Team’s duties and obligations hereunder.
Survival. Rights and obligations which by their nature should survive or which this Agreement expressly states will survive will remain in full force and effect following termination or expiration of this Agreement, including, but not limited, to Sections 1, 2, 4,5(e),5(g), 6, 9, 10, 12, 16, 18, of Schedule 1.