This PROMOTION AGREEMENT (this “Agreement”) is made and entered into as of this day of submission (the “Effective Date”) by and between UNITED AIRLINES, INC. (“United”) and TechCrunch (the “Organization”).
1. RIGHTS AND BENEFITS
1.1 Subject to the terms and conditions set forth in this Agreement, in consideration for the payments of the Payment Terms, during the Term, Organization hereby grants and provides to United, and United shall receive, the rights and benefits set forth herein, including the rights and benefits set forth in Attachment A attached hereto
2. REVIEW AND APPROVAL OF PROMOTIONAL MATERIALS.
2.1 United shall have the right to use the Organization’s name and emblem (consisting of Organization’s logos and marks) at no cost to United solely in connection with advertising and marketing the Promotion (as defined below) subject to the terms of this Agreement. All uses of Organization’s logo will comply with the usage guidelines provided by Organization. The Organization name and emblem is and shall remain the property of Organization. The Organization shall have the right to use United’s name and globe logo, solely to identify United as a sponsor and subject to the terms of this Agreement. All use of United’s logo shall comply with the usage and design requirements of United, and/or as Organization is otherwise instructed by United. United’s name and logo are and shall remain the property of United. For the purposes of this Agreement, the term “Promotion" means, collectively, the promotional exposure provided to United by the Organization and the promotional support provided to the Organization by United, in accordance with and pursuant to the terms of this Agreement.
2.2 Each party will provide and deliver to the other party, for its review and approval all proposed material relating to the Promotion using the other party’s name or logo. For United’s review, camera-ready logo art, logo graphics files and logo usage design requirements must be sent to United’s designated relationship manager. Within five (5) business days of its receipt of such material, such party will communicate any objections, corrections or suggestions. No materials will be used concerning United, which, in the sole opinion of United, disparage or reflect unfavorably on United, are otherwise inconsistent with the overall image of United, or will jeopardize or undermine any copyright, trademark, service mark, logo or other intellectual property of United. Organization will maintain the high public image of United in any material published. At all times the trademarks and other intellectual property which are currently owned by or licensed to the respective parties shall remain the property of the owner. Except as specifically stated in this Agreement, neither party shall have the right to use the intellectual property of the other party, and all use of trademarks and other intellectual property shall inure to the benefit of the owner.
2.3 All exhibits, signage and display materials will be subject to the restrictions and guidelines set forth by the conference venue. Exhibits will not block, obstruct the view of, or otherwise interfere with other exhibits. All displays will be set up in full prior to the opening of the conference. United will maintain the exhibition space for the duration of the conference and will be responsible for promptly dismantling the exhibit immediately following the conclusion of the conference. United is liable for any damage caused to building floors, walls or columns caused by materials it uses for its exhibition.
3. LIABILITY AND INDEMNIFICATION. Organization shall defend, indemnify and hold harmless United, its directors, officers, affiliates, agents and employees (“United Parties”) from and against any and all third party liabilities, claims, suits, damages, judgments, costs, and expenses, including reasonable attorneys’ fees, arising out of or in connection with this Agreement, which may be asserted (now or in the future) against the United Parties, including but not limited to any and all claims relating to: (A) (B) the gross negligence or wilful misconduct in connection with the Promotion, of Organization or its officers, directors, representatives, agents or employees; (C) any infringement or misappropriation by Organization or its officers, directors, representatives, agents or employees of any proprietary rights of any third party; (D) any infringement or violation of any IP right or other right of any third party resulting from or related to the use, adoption, or display of the Organization name or emblem; (E) any material misrepresentation by the Organization or its officers, directors, representatives, agents or employees in connection with this Agreement or any materials relating thereto; and/or (F) any negligent or intentional acts or omissions of Organization or its officers, directors, representatives, agents, employees, and/or volunteers, including, but not limited to, all volunteers from United identified or approved by the Organization as volunteers for the Organization.
This Section 3 shall survive the expiration or termination of this Agreement.
4. INSURANCE. 4.1 Organization shall procure and maintain commercial general liability insurance at its own cost and expense, at all times during the term of this Agreement, with an insurance company of recognized responsibility, which insurance shall include premises liability, independent contractors, personal injury including Advertisers Liability, products and completed operations and contractual liability in an amount not less than $_5,000,000_per occurrence combined single limit, which insurance may be provided by a combination of primary and umbrella coverages, covering all liability arising out of any bodily injury (including death of any person) and any damage to (including destruction of) property. 4.2 Insurance coverages required herein will name United, as Additional Insureds to the extent of the contractual obligations assumed by Organization under this Agreement, provide a waiver of subrogation in favor of the Additional Insureds and provide that Organization’s insurance will be primary without right of contribution by United. Each party will include a mutual waiver of subrogation.4.3 Organization, through its insurance company(s) or broker(s), shall furnish to United, certificates(s) of insurance, evidencing the insurance policies required herein are properly endorsed and are in full force and effect prior to the commencement of performance under this Agreement and upon annual renewal of insurance policies during the term of this Agreement.
5. TAXES. Organization shall be solely responsible for its tax status and tax treatment, and any effect or impact on such status or treatment resulting from this Agreement, and it agrees to indemnify and hold United harmless from and against any taxes, fees or other charges, together with interest and penalties attributable to such taxes, fees or other charges, imposed by any federal, state or local government or taxing authority (domestic and foreign) against Organization with respect to this Agreement, or any revenues paid or due hereunder.
6. COMPLIANCE WITH APPLICABLE LAWS. Each of United and Organization will comply with all applicable federal, state and local laws and regulations (domestic and foreign) with respect to its obligations hereunder the Promotion and its performance under this Agreement. Organization will conduct and administer any and all raffles, auctions, and/or sweepstakes conducted in connection with the Promotion or this Agreement in accordance with all applicable legal requirements and Organization acknowledges that where United has approved the inclusion of any electronic travel certificates provided by United under this Agreement as a potential prize, United is only acting as a prize provider in connection with any such raffles, auctions and/or sweepstakes.
United will abide by and observe any laws, rules, regulations and ordinances, and all rules and regulations of TechCrunch and the venue in connection with its participation in the conference as may be set forth from time to time. In addition, United must observe all union regulations and electrical codes to which the venue is subject.
7. TERM AND TERMINATION.
7.1 Term. Unless earlier terminated pursuant to the provisions of this Agreement, the term of this Agreement and the parties’ respective performance obligations will commence on the Effective Date and end on December 31, 2018.
7.2 Early Termination. If (i) either party (the “Defaulting Party”) fails to observe or perform any of its material obligations under this Agreement and if this failure continues for a period of ten (10) days after written notice to the Defaulting Party thereof (except for any payments due, where the period to cure such nonpayment will be five (5) days after notice), then, without prejudice to any other rights or remedies the other party may have, the other party may terminate this Agreement upon further written notice to the Defaulting Party as of the date specified in such notice, or (ii) if either party (the “Insecure Party”) takes any step leading to its cessation as a going concern or ceases or suspends operations for any reason, then the other party may immediately terminate this Agreement upon written notice to the Insecure Party.
7.3 In the event that United exercises its right to terminate this Agreement under Section 7.2, the Organization hereby agrees to, no later than the expiration date of the applicable notice period(s) described above: (A) refund to United any unused travel benefits and/or concessions extended to Organization pursuant to this Agreement; and (B) compensate United for any travel benefits and/or concessions Organization has used up to the date of the termination.
7.4 Post Termination Rights and Obligations. Exercise by either party (so long as it is not a Defaulting Party) of its right to terminate this Agreement will not affect or impair its right to enforce its other rights or remedies under this Agreement. All obligations of each party that have accrued before termination or that are of a continuing nature will survive termination. Upon termination of this Agreement, all rights and privileges granted to Organization to use United’s marks shall automatically revert to United, and all rights and privileges granted to United to use Organization’s marks shall automatically revert to Organization. However, neither party will be obligated to remove the other’s marks from any product (such as pamphlets or clothing) in the possession of outside parties distributed prior to such termination.
8. CONFIDENTIALITY; PUBLICITY. 8.1 Each party (a “Receiving Party”) shall (i) use reasonable care to maintain the confidentiality of any proprietary or confidential information provided to it by the other party (a “Disclosing Party”) in connection with this Agreement, (ii) not disclose any such confidential information of the other party to any unaffiliated third party without the consent of the other party, not to be unreasonably withheld, and (iii) only use such Disclosing Party's proprietary or confidential information in connection with the Receiving Party’s performance under this Agreement or as expressly permitted under this Agreement.
8.2 No advertising, public announcement or publicity in connection with the Promotion or containing any reference to either party or any of its employees, either directly or by implication, shall be made by the other party without first obtaining prior written approval of the affected party, such approval not to be unreasonably withheld.
9.1 Non-Transferability. Neither party will assign or otherwise transfer any of its rights or obligations under this Agreement to any third party without the prior written consent of the other party (the “Non-Assigning Party”), except that United may assign this Agreement to any affiliate or to any successor by way of merger, consolidation or similar transaction.
9.2 Change in Ownership. Organization must notify United immediately in writing if, after the date of this Agreement, (A) Organization merges with or acquires control of or a controlling interest in any third party or (B) any third party acquires control of or a controlling interest in Organization.
9.3 Force Majeure. Except for any payment obligations, neither party will be liable for delays or failure in performance under this Agreement caused by acts of God, war, terrorism, strike, labor dispute, work stoppage, fire, act of government, or any other cause, whether similar or dissimilar, beyond the control of that party. If, because of fire, strike, earthquake, war, construction or renovation projects affecting the venue, government regulation, disaster, disease, terrorism, interruption of transportation or communications, Acts of God, or the public enemy, the Conference, or any part thereof, is prevented from being held or is cancelled, TechCrunch will reimburse Exhibitor its proportionate balance of the Sponsorship fee paid after deducting non-refundable expenses incurred by TechCrunch and reasonable costs incurred by TechCrunch to organize the event. In no case shall the amount of the refund to Exhibitor exceed the amount of the Exhibitor fee paid.
9.4 Non-Waiver. No waiver by either party of any default, forbearance or breach by the other party of any provision of this Agreement will operate as or be deemed a waiver of any subsequent default or breach.
9.5 Governing Law. This Agreement and any dispute arising under or in connection with this Agreement, including any action in tort, will be governed by the internal laws of the State of Illinois without giving effect to conflict of laws principles that might refer such interpretation to the laws of a different state or jurisdiction.
9.6 Warranty. Except as expressly set forth in this Agreement, TechCrunch disclaims any and all other warranties, express or implied. The rights of TechCrunch under this Agreement will not be deemed waived except as specifically stated in writing and signed by an authorized representative of TechCrunch.
9.7 DISCLAIMER OF CONSEQUENTIAL DAMAGES. EXCEPT AS PROVIDED UNDER SECTION 3 OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOST REVENUES, LOST PROFITS, OR LOST PROSPECTIVE ECONOMIC ADVANTAGE, ARISING FROM ANY PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, AND EACH PARTY HEREBY RELEASES AND WAIVES ANY CLAIMS (WHETHER BASED UPON BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF RECOVERY) AGAINST THE OTHER PARTY FOR ANY SUCH INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR LOSS OF GOODWILL) ARISING OUT OF, RESULTING FROM, OR RELATING TO THE AGREEMENT EVEN IF SUCH PARTY OR PARTIES HAVE/HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED THAT SUCH LIABILITY BETWEEN THE PARTIES WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL BE CAPPED AT THE AGGREGATE AMOUNTS PAYABLE UNDER THE AGREEMENT.. 9.8 Notices. Any notices required to be sent under this Agreement will be in writing and sent in any commercially reasonable manner, including certified mail (return receipt requested) to the other party at the applicable mailing address: If to United:
United Airlines, Inc.<Derek Russell>233 S Wacker Drive – 13th FloorChicago, IL 60606
9.8 Relationship of the parties. The parties hereto covenant and agree that this Agreement and the rights and obligations established hereunder neither create nor are intended to create any relationship of partnership, agency or joint venture between United and Organization.
9.9 Entire Agreement. This Agreement, together with its attachments constitutes the entire agreement and understanding of the parties on the subject matter hereof, and, as of the Effective Date, supersedes all prior agreements, whether written or oral, between the parties concerning the subject matter hereof. This Agreement may be modified only by further written agreement signed by all of the parties hereto.
IN WITNESS WHEREOF, this Agreement has been made and entered into as of the day and year first above written.