Motorsports Driver Terms and Conditions LMP2
PRATT & MILLER ENGINEERING & FABRICATION LLC
Terms and Conditions LMP2 Racing
The below terms and conditions are incorporated in their entirety into all LMP2 Race Team Services Agreement.
1. DEFINITIONS
1.1. Capitalized terms used in these Terms and Conditions will have the meaning set forth in the LMPT2 Race Team Services Agreement.
2. ORDER OF PRECEDENCE
2.1. In the event of any direct conflict between the LMPT2 Race Team Services Agreement and these Terms and Conditions, the Race Team Services Agreement will control and prevail.
3. RELATIONSHIP OF THE PARTIES
3.1. TEAM, DRIVER and CLIENT are independent contracting parties, and nothing contained in this Agreement shall be deemed to create a partnership, joint venture or agency relationship between them, nor does it grant either party any authority to assume or create any obligation on behalf of or in the name of the other. DRIVER and CLIENT agree to defend, indemnify, and hold TEAM, its parent, subsidiary and affiliated entities, and its and their respective officers, directors, agents, and employees harmless from and against any claims and demands whatsoever resulting from DRIVER and CLIENT’s failure to comply with the provisions of this Section.
4. TERMINATION
4.1.1. Termination for breach.
4.1.2. Either party may terminate this Agreement, without liability to the other party, if the other party: (1) repudiates or breaches any material term of this Agreement; or (2) fails to make progress so as to endanger timely and proper completion of its services, and does not correct such failure or breach to the reasonable satisfaction of the non-defaulting party within ten (10) days, or such shorter period if commercially reasonable, after receipt of written notice from the non-defaulting party specifying such failure or breach.
4.1.3. In the event this Agreement is terminated, each party shall cease using the other party’s Marks.
4.1.4. Payment to TEAM. In the event of early termination of this Agreement, CLIENT shall pay TEAM its accrued but unpaid compensation for Services rendered through the time of termination and shall reimburse TEAM for expenses properly incurred and documented in accordance with Section 5. CLIENT may withhold a reasonable amount to compensate it for any estimated damages in the event CLIENT terminates this Agreement as a consequence of TEAM’s breach of this Agreement.
5. RELATIONSHIP OF THE PARTIES
5.1. TEAM, DRIVER and CLIENT are independent contracting parties, and nothing contained in this Agreement shall be deemed to create a partnership, joint venture or agency relationship between them, nor does it grant either party any authority to assume or create any obligation on behalf of or in the name of the other. DRIVER and CLIENT agree to defend, indemnify, and hold
TEAM, its parent, subsidiary and affiliated entities, and its and their respective officers, directors, agents, and employees harmless from and against any claims and demands whatsoever resulting from DRIVER and CLIENT’s failure to comply with the provisions of this Section.
6. INTELLECTUAL PROPERTY
6.1. INTELLECTUAL PROPERTY” or “IP” means all legal rights in works or ideas including, but is not limited to, patents and patent applications, copyright or copyrightable works (including software) designs, processes, proprietary information, mask works, integrated circuit layout designs, databases, technical data, inventions, trade secrets and know-how.
6.2. TEAM IP. Under this agreement, and for the activities contemplated in this agreement, the TEAM will use and otherwise employ TEAM IP provided by Pratt & Miller Engineering & Fabrication LLC (“PME”). PME will retain exclusive rights and title to the background IP used by the TEAM.
6.3. If, during the term of this agreement, the TEAM develops new IP or improves existing background IP in support of this agreement, that IP will be exclusive property of the TEAM. Further, the TEAM will have exclusive rights and title to all data generated by the TEAM in support of this agreement.
6.4. USE AND PROTECTION OF TRADEMARKS AND OTHER INTELLECTUAL PROPERTY
6.4.1. TEAM has the right to use and authorize the use of “DRIVER Marks” including the use of its DRIVERs’ names, images, trademarks, service marks, voice, signature and other intellectual property. The term “DRIVER Marks” shall be incorporated into the terms Marks for the purposes of this Agreement.
6.4.2. Neither Party will do anything inconsistent with the ownership of the Marks and related goodwill, and all uses of and/or references to the Marks shall inure to the benefit of the respective owner. Nothing in this Agreement shall be deemed to constitute or result in an assignment of any of the Marks or the creation of any equitable or other interests in them.
6.4.3. Publicity and Advertising by TEAM. TEAM shall have the right pursuant to this Agreement, and without additional compensation to DRIVER, to depict and use in its advertising and collateral material, photographs, and other images of the CAR(s), as they are raced, DRIVER(s) fire suit(s) and all TEAM uniforms and fire suits as worn at a racing event covered by this Agreement with all logos, decals, patches, including without limitation the logos, decals and patches of any other Sponsors, in any promotion, advertising, or marketing endeavor, but only with the prior written approval of DRIVER, which approval shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, TEAM shall be responsible for obtaining rights to any third-party racing footage, third party logos, third party track logos and/or event logos. TEAM further shall have the non-exclusive right and without additional compensation to DRIVER, but only with the prior written approval of DRIVER, which approval shall not be unreasonably withheld, delayed or conditioned, to use the name, photographs, images or other likenesses, voices and biographical information of DRIVER(s) in connection with the promotion and advertising of TEAM’s motorsports activities.
6.4.4. Except as otherwise expressly indicated in this Agreement, upon termination or expiration of this Agreement for any reason, both parties shall cease all use of the Marks of the other party as soon as practicable, but in any event no later than sixty (60) days after such termination or expiration.
7. NON-SOLICITATION
7.1. During the term of this Agreement and for a period of two (2) years after its termination, neither party will directly or indirectly solicit for hire or engagement any of the other party’s personnel. For purposes herein, “solicit” does not include broad-based recruiting efforts, including without limitation help wanted advertising and posting of open positions on a party’s internet site. In the event of a violation of this non-solicitation clause, the damage incurred to TEAM would be difficult or impossible to ascertain and TEAM shall be entitled to seek injunctive relief without prejudice to any other relief, including monetary damages.
8. FORCE MAJEURE
8.1. Any delay or failure of either party to perform its obligations hereunder shall be excused to the extent that it is caused by an event or occurrence beyond its reasonable control such as, by way of example and not by way of limitation, acts of God, actions by governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, acts of terrorism, sabotage, labor problems or similar occurrences; provided the party claiming force majeure promptly notifies the other Party of such event of force majeure, the anticipated duration of the event of force majeure, and the steps being taken to remedy the failure.
9. CONFIDENTIALITY
9.1. It is specifically acknowledged and agreed that the terms of this Agreement must be held by CLIENT and DRIVER in strict confidence and will under no circumstances be released publicly by the CLIENT or DRIVER unless CLIENT or DRIVER is otherwise compelled by law to release such information. Such confidentiality is of the essence of this Agreement. The CLIENT or DRIVER will be subject to the non-disclosure to third parties of any confidential information related to TEAM as detailed in the Non-Disclosure Agreement signed between the parties.
10. WAIVER: RELEASE: ASSUMPTION OF RISK
10.1. DRIVER hereby releases and covenants not to sue TEAM, ITS PARENT COMPANY AND ALL OTHER AFFILIATES, AND EACH OF ITS AND THEIR RESPECTIVE EQUITY HOLDERS, DIRECTORS, MANAGERS, OFFICERS, AGENTS, AND EMPLOYEES of and for any liability arising out of or relating to the racing vehicle, including BUT NOT LIMITED TO as it relates to the design, MANUFACTURE, construction, or operation (including use or misuse) of the Racing Vehicle, OR THE UNAVAILABILITY OR LOSS OF USE OF THE RACING VEHICLE, whether based on contract, tort, strict liability, or otherwise.
10.2. DRIVER recognizes the inherent risks of physical injury, death, accidents, or property damage associated with competitive racing in general and operation of the Racing Vehicle in particular. DRIVER HEREBY ASSUMES FULL RESPONSIBILTY FOR ALL RISKS associated with the operation (including use and misuse) of the Racing Vehicle, INCLUDING all risks of PHYSICAL INJURY, DEATH, OR PROPERTY DAMAGE to DRIVER, DRIVER’s agents, or third parties. DRIVER is agreeing to this waiver and release on behalf DRIVER, DRIVER’s agents and employees, and DRIVER’s heirs, beneficiaries, administrators, personal representatives, and estate in case of accident, injury, or death to DRIVER’s person or property.
10.3. ELIMINATION OF INCIDENTAL and CONSEQUENTIAL DAMAGES
EXCEPT AS EXPRESSLY SET FORTH OTHERWISE HEREIN, IT IS UNDERSTOOD AND AGREED BY THE PARTIES HERETO THAT TEAM, ITS AFFILIATES, AND EACH OF ITS AND THEIR RESPECTIVE EQUITY HOLDERS, DIRECTORS, MANAGERS, OFFICERS, AGENTS, AND EMPLOYEES SHALL NOT IN ANY WAY BE LIABLE OR RESPONSIBLE FOR ANY INCIDENTAL, CONSEQUENTIAL, ECONOMIC, OR SPECIAL, OR PUNITIVE DAMAGES, OF ANY KIND OR NATURE, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS AND LOSS OF USE OF THE RACING VEHICLE FROM ANY CAUSE OF ACTION OF ANY KIND OR NATURE, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, CONTRACT, WARRANTY OR ANY OTHER CAUSES OF ACTIONS.
10.4. INDEMNITY
DRIVER agrees to indemnify, defend, and hold TEAM, its parent company and all other affiliates, and each of its and their respective equity holders, directors, managers, officers, agents, and employees harmless from any and all claims, liabilities, damages, losses, costs and expenses (including attorneys’ fees), arising out of claims and/or threatened claims by third parties arising out of or relating to this agreement, including but not limited to claims arising out of or relating to (a) the death, bodily injury, or property damage of any third party allegedly resulting from DRIVER (or DRIVER’s agent) wrongfully, unlawfully, or negligently using or operating the Racing Vehicle, (b) any breach by Buyer of any representation, warranty, and/or agreement made in this agreement; and (c) any alleged failure by DRIVER (or DRIVER’s agent) to comply with federal, state, and/or local laws, rules, and/or regulations concerning ownership and operation of the Racing Vehicle. The parties acknowledge and agree that TEAM shall have the right, but not the obligation, to conduct and maintain control of the defense of any claim or action for which DRIVER is the indemnifying party; however, DRIVER may choose retain independent counsel for any such claim or action, at DRIVER’s sole cost and expense, and said counsel may participate on behalf of DRIVER.
11. RELATIONSHIP OF THE PARTIES
11.1. TEAM and DRIVER are independent contracting parties, and nothing contained in this Agreement shall be deemed to create a partnership, joint venture or agency relationship between them, nor does it grant either party any authority to assume or create any obligation on behalf of or in the name of the other. Without limiting the foregoing, PM shall not be considered the employer of any DRIVER’s employees, agents, subcontractors or other representatives. DRIVER shall have sole and exclusive responsibility for making of all reports and contributions, withholding payments and taxes to be collected, withheld, made and paid with respect to such persons’ services hereunder, whether pursuant to any social security and Medicare, unemployment insurance, old age pensions, workers compensation or disability benefits, legislation or other federal, state or local legislation or regulation, whether now in force and effect or hereafter enacted. DRIVER agrees to defend, indemnify and hold TEAM, its parent, subsidiary and affiliated entities, and its and their respective officers, directors, agents, and employees harmless from and against any claims and demands whatsoever resulting from DRIVER’s failure to comply with the provisions of this Section.
12. NO IMPLIED WAIVERS
12.1. Failure by either party at any time to require performance by the other party of any provision hereof shall in no way affect the right to require full performance any time thereafter, nor shall the waiver by either party of a breach of any provision to this Agreement constitute a waiver of any succeeding breach of same or any other provision, nor constitute a waiver of the provision itself.
13. ASSIGNMENT
13.1. This Agreement, and all the rights and duties of the respective parties under this Agreement, may not be assigned by any party hereto without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld. To the extent not prohibited hereby, this Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors and assigns.
14. ENTIRE AGREEMENT
14.1. This Agreement and its Exhibits and Attachments (i) contain the entire understanding of the parties hereto, (ii) supersede all prior agreements, and (iii) shall not be amended except by a written instrument hereafter signed by all parties hereto. No waiver of any provision of this Agreement shall be effective unless evidenced by a written instrument signed by the waiving party.
14.2. The parties further acknowledge and agree that, in entering into this agreement, they have not in any way relied upon any oral, or written agreements, understanding, representations or warranties, express or implied, not specifically set forth in this agreement. The parties expressly waive application of any local, state or federal law, statute, or judicial decision allowing oral modifications, amendments, or additions to this Agreement notwithstanding an express provision requiring a writing signed by the parties.
15. SURVIVAL
15.1. All terms and provisions of this Agreement that should by their nature survive the termination of this Agreement shall so survive.
16. SEVERABILITY
16.1. If any provision of this Agreement is held invalid, void, or unenforceable to any extent, that provision will be enforced to the greatest extent permitted by law and the remainder of this Agreement and application of such provision of other persons or circumstances will not be affected.
17. APPLICABLE LAW and FORUM
17.1. This Agreement and all claims arising out of or relating to this Agreement and the Racing Vehicle shall be governed by the laws of the State of Delaware without regard to conflicts of laws. Buyer and TEAM hereby agree on behalf of themselves and any person claiming by or through them that the sole jurisdiction and venue for any litigation arising from or relating to this Agreement shall be in an appropriate federal or state court located in Delaware.
18. ASSIGNMENT AND SUCCESSORS
18.1. Neither party may assign this Agreement without the other party’s prior written consent, This Agreement benefits and will be binding upon TEAM, CLIENT and their respective successors, heirs and permitted assigns.